MANU/SC/0241/1988

Equivalent/Neutral Citation: AIR1988SC 1883, 1988 (25) AC C 451, 1988(36)BLJR630, 1989C riLJ1, 1988 INSC 200, JT1988(3)SC 191,
1988(2)SC ALE117, (1988)3SC C 609, [1988]Supp2SC R24

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 180 to 182 of 1987
Decided On: 03.08.1988
Kehar Singh and Ors. Vs. State (Delhi Administration)
Hon'ble Judges/Coram:
B.C. Ray, G.L. Oza and K. Jagannatha Shetty, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ram Jethmalani, Sr. Adv. and R.S. Sodhi, Rani
Jethmalani, R.M. Tiwari, Ashok Sharma, Sanjeev Kumar, Advs
For Respondents/Defendant: G. Ramaswamy, Additional Solicitor General, S.
Madhusudhan Rao, Sr. Adv. and P. Parmeswaran, A. Subhashini, M.V. Chelapathi Rao,
S.P.�Minocha� and A.P. Ahluwalia, Advs.
JUDGMENT
G.L. Oza, J.
1 . These appeals by leave are directed against the conviction of the three appellants
Kehar Singh, Balbir Singh and Satwant Singh under Section 302 read with Section 120B
IPC and the appellant Satwant Singh under Section 302 read with Section 120B, Section
34 & Section 307 IPC and also 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 by its judgment
in Criminal Appeal Nos. 28-29/1986 and Confirmation Case No. 2/86. The case relates
to a very unfortunate incident where the Prime Minister Smt. Indira Gandhi was
assassinated by persons posted for her security at her residence.
2 . The facts brought out during investigation are that Smt. Indira Gandhi had her
residence in New Delhi at No. 1, Safdarjung Road. Her Office was at No. 1, Akbar Road
which was a bungalow adjoining her residence. In fact the two bungalows had been
rolled into one by a campus with a cemented pathway about 8 ft. wide leading from the
residence to the Office and separated by a Sentry gate which has been referred to as the
TMC Gate and a sentry booth nearby. Smt. Indira Gandhi had gone on a tour to Orissa
and returned to New Delhi on the night of 30th October, 1984. At about 9 A.M. on the
fateful day i.e. 31stOctober, 1984Smt. Gandhi left her residence and proceeded towards
the office along the cemented path. When she approached the TMC Gate and was about
10 or 11 ft. away therefrom she was riddled with a spray of bullets and she fell
immediately. She was removed to All India Institute of Medical Sciences ('AIIMS' for
short) but to no avail. A wireless message about the occurrence was received at 9.23
A.M. by the Wireless Operator Head Constable Ram Kumar PW 38 at Tuglak Road Police
Station having jurisdiction over the place of occurrence. The Duty Officer PW 1 deputed
Sub Inspector Vir Singh PW 20 and Constable Mulak Raj to visit the spotatonce. They
were soon joined by the Station House Officer Inspector Baldev Singh Gill PW 21. These
persons roped off the area of occurrence to isolate it, placed it in charge of Constable

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and then proceeded to AIIMS.
3 . In the meanwhile it was decided to entrust this investigation to Rajendra Prasad
Kochhar PW 73 then Inspector in the Homicide squad of the Crime Branch of Delhi
Police. However, as is only to be expected having regard to the circumstances, the
Government soon decided to constitute a Special Investigation Team (SIT) to pursue
the investigation. "On 9.11.84 the Delhi Administration issued two notifications. By one
of these in exercise of powers under Section 7(1) of Delhi Police Act, S. Anandram, IPS
was appointed as an Additional Commissioner of Police and was declared for the
purpose of Section 36 Cr. P.C. to be a Police Officer superior in rank to an Officer-in-
charge of a Police Station. By the other notification issued in exercise of the powers
Conferred under Section 7(2)(b) of the Police Act, Anandram was authorised to exercise
all the powers and perform all the duties of commissioner of Police in relation to this
case and any other offences connected thereto. The notification shows that copy of each
of them is forwarded for publication to the Delhi Gazette. Sometime later on 22nd
December, 1984 the Administration in exercise of powers under Section 8(1) of the
Police Act appointed Des Raj Kakkar and M.S. Sharma as Deputy Commissioner of Police
and Assistant Commissioner of Police respectively designating them as Officers superior
to an Officer-in-charge of a Police Station and placed their services at the disposal of
Shri Anandram. We understand that Shri R.P. Kapoor was named as the Chief
Investigative Officer but it was Mr. Kochhar who was closely associated with the
investigation throughout except for a short period between 15.11.84 when the SIT
assumed charge and 27.11.84 when his services were lent to SIT and he is an important
witness of the prosecution so far as investigation is concerned.
4. Shri Kochhar reached AIIMS at about 10 A.M. and at 11.25 A.M. on 31.10.84 he sent
at the Tuglak Road Police Station through Shri Vir Singh, PW 20 a report on the basis of
which First Information Report (FIR) for a cognizable offence punishable under Sections
307, 120B IPC and Sections 25, 27, 54 & 59 of the Arms Act was registered at the Police
Station. The report was based on the statement of Narain Singh, PW 9, a Head
Constable deputed on duty at Smt. Indira Gandhi's residence, recorded by Shri Kochhar
at AIIMS. Narain Singh who was accompanying Smt. Gandhi at the time of shooting and
claimed to be a witness of occurrence had stated as follows. This statement made by
Narain Singh in the First Information Report brings out the important facts leading to
the offence and this part of the Statement as quoted by the High Court reads:
When we were about 10-11 ft. away from the gate of 1, Safdarjung Road and 1,
Akbar Road, I noticed Beant Singh SI on duty at TMC Gate and in the adjoining
Sentry booth Constable Satwant Singh, 2nd En. in uniform armed with a
Stengun was on duty. When Smt. Indira Gandhi reached near the Sentry booth,
Beant Singh, SI took out his service revolver from his right dub and
immediately started firing bullets at Smt. Indira Gandhi. At the same time
Constable Satwant Singh also fired shots at Smt. Indira Gandhi with his
Stengun. As a result of firing of bullets at the hands of the aforesaid two
persons Smt. Indira Gandhi sustained injuries on her front and fell down on the
ground. Sh. Rameshwar Dayal ASI has also received bullet injuries due to the
firing made by the aforesaid two persons. I threw the umbrella, Shri Beant
Singh SI and Constable Satwant Singh were secured with the assistance of Shri
B.K. Bhatt, AGP PSO in ITBP personnel. The arms of these two persons fell
down on the spot itself. Thereafter I went to call Dr. R. Obey. In the meantime
the car, doctor and the other officials reached the place of occurrence and Smt.
Indira Gandhi was removed to AIIMS and was got admitted there. Shri B.K.
Bhatt, Shri R.K. Dhawan, Shri Nathu Ram, Sh. Lavang Sherpand Shri

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 Rameshwar Dayal ASI had witnessed the occurrence. Beant Singh SI and
Constable Satwant Singh in furtherance of their common objects have fired
shots at Smt. Indira Gandhi and have caused injuries on her person with an
intention to kill her. It is learnt that Beant Singh SI and Constable Satwant
Singh had also sustained bullet injuries at the hands of ITBP personnel. Legal
action may please be taken against them.
5 . Upon receiving the news about the death of Smt. Indira Gandhi, the offence in the
FIR was converted from Section 307 to Section 302 and investigation proceeded ahead.
6 . According to the prosecution Satwant Singh was arrested on 15.11.84 at Red Fort
where he had been taken after his discharge from the Hospital in early hours of the
same day. The Chief Justice and the Judges of the Delhi High Court on a request made
by Delhi Administration decided to depute and designate Shri S.L. Khanna, Additional
Chief Metropolitan Magistrate, Tis Hazari to deal with the remand matter of Satwant
Singh in Red Fort, Delhi. Satwant Singh was produced before Shri S.L. Khanna, PW 67
on the same day and remanded to the police custodytill29.11.84. On 29.11.84itwas said
that Satwant Singh wanted to make a confession and he was produced before Shri
Khanna. Shri Khanna, however, gave him time to think over till 1.12.84 and remanded
him to judicial custody in Tihar Jail. It appears that thereafter the Delhi Administration
again made a request to the Delhi High Court and the Delhi High Court authorised Sh.
S.L. Khanna by Order dated 1.12.84 to hold remand proceedings in Tihar Jail on
1.12.84 and on subsequent dates. It also appears that Shri G.P. Tareja who was the link
Magistrate of Shri S.L. Khanna had gone on long leave and by an order dated 1.12.84,
Shri Bharat Bhushan Gupta, PW 1 was appointed as a link Magistrate in this case. In the
light of these orders Satwant Singh was produced before Shri Khanna on 1.12:84 in the
Jail. He passed on the papers to Shri Bharat Bhushan Gupta and later recorded a
confession from Satwant Singh on the same day which is Ex. 11-G.
7 . One Kehar Singh said to be an Uncle (Phoopha) of Beant Singh working as an
Assistant in the Office of the Director General of Supplies & Disposals was claimed to
have been arrested on 30.11.84. He was produced before Shri Khanna on 1.12.84 who
remanded him to police custody till 5.12.84. He is said to have made a statement
on3.12.84 in pursuance of which some incriminating articles were seized at his house
and from & place pointed out by him. He was again produced on 5.12.84 before Shri
S.L. Khanna who remanded him to judicial custody till 15.12.84 pending further
investigation.
8. Balbir Singh, a Sub-Inspector posted for security duty at Smt. Gandhi's office is said
to have been arrested on 3.12.84. It is said that certain incriminating material was
found on his person when searched at the time of his arrest. On 4.12.84 at the request
of Delhi Administration the High Court empowered Shri S.L. Khanna to deal with the
remand matter of these persons accused in the assassination case of Prime Minister.
Balbir Singh was therefore produced before Shri S.L. Khanna on 4.12.84 and was
remanded to the police custody till 6.12.84. On 6.12.84 an application was filed before
Shri S.L. Khanna which stated that Balbir Singh wanted to make a confession. The
matter was sent by Sh. S.L. Khanna to Sh. Bharat Bhushan Gupta. After two
appearances before Shri Bharat Bhushan, Balbir Singh finally refused to make statement
confessional or otherwise.
9. In the meantime the Police had recorded certain statements one of Amarjit Singh PW
44 who was also a Police Officer ASI on duty at the PM's residence. These statements
have been recorded on 24.11.84 and 19.12.84. The Police requested the Magistrate Shri

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Bharat Bhushan to record a statement of Amarjit under Section 164 Cr. P.C. That was
accordingly recorded as PW 44-A.
10. Beant Singh had died as a result of injuries sustained by him and referred to by
Narain Singh in his statement in the FIR itself. A report under Section 173 Cr.P.C hereto
referred to as the charge-sheet was filed on 11.12.1985 in the Court of Shri S.L. Khanna
against Satwant Singh who had survived after a period of critical illness from his
injuries and the two other persons referred to above namely Balbir Singh and Kehar
Singh. These three persons were accused of an offence under Sections 120-B, 109 and
34 read with 302 IPC and also of substantive offences under Sections 302, 307 IPC and
Sections 27,54 & 59 of the Arms Act. This report also mentions Beant Singh as one of
the accused persons but since he had died the charges against him were said to have
abetted.
11. The prosecution case at the trial was that in June 1984 the armed forces of the
Indian Union took action which is described generally as 'Operation Bluestar' under
which armed forces personnel entered the Golden Temple complex at Amritsar and
cleared it off the terrorists. In this operation it is alleged that there was loss of life and
properties as well as damage amongst other things to the Akal Takht in the Golden
Temple complex. As a result of this Operation the religious feelings of the members of
the Sikh community were greatly offended. According to the prosecution, all the four
accused persons mentioned in the charge-sheet who were Sikhs by faith have been
expressing their resentment openly and holding Smt. Indira Gandhi responsible for the
action taken at Amritsar. They had met at various places and at various times to discuss
and to listen inflammatory speeches and recording calculated to excite listeners and
provoke them to retaliatory action against the decision of the Government to take army
action in Golden Temple complex. The resentment led them ultimately to the incident of
31.10.84 and to become parties to a criminal conspiracy to commit an illegal act namely
to commit the murder of Smt. Indira Gandhi. In pursuance of the above conspiracy
accused has committed the following acts. This report (charge-sheet) stated facts
against each of the accused persons which have been quoted by the High Court in its
judgment:
(i) Accused Kehar Singh, a religious fanatic, after the 'Bluestar Operation'
converted Beant Singh and through him Satwant Singh to religious bigotry and
made them undergo 'Arnrit Chakna ceremony' on 14.10.1984 and 24.10.1984
respectively at Gurudwara Sector VI, R.K. Puram, New Delhi. He also took Beant
Singh to Golden Temple on 20.10.1984 where Satwant Singh was to join them
as part of the mission.
(ii) Since the 'Bluestar Operation' Balbir Singh was planning to commit the
murder of Smt. Indira Gandhi and discussed his plans with Beant Singh, who
had similar plans to commit the offence. Balbir Singh also shared his intention
and prompted Satwant Singh to commit the murder of Smt. Indira Gandhi and
finally discussed this matter with him on 30th October, 1984.
(iii) In the first week of September, 1984, when a falcon (baaz) happened to sit
on a tree near the main reception of PM's house, at about 1.30 P.M. Balbir
Singh spotted the falcon, called Beant Singh there and pointed out the falcon.
Both of them agreed that it had brought the message of the Tenth Guru of the
Sikhs and that they should do something by way of revenge of the 'Bluestar
Operation'. Both of the above accused performed ardas then and there.

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 (iv) In pursuance of the aforesaid conspiracy, Beant Singh and Satwant Singh,
who had prior knowledge that Smt. Indira Gandhi was scheduled to pass
through the T.M.C. Gate on31.10.1984 at about 9 A.M. for an interview with an
Irish television team, manipulated their duties in such a manner that Beant
Singh would be present at the T.M.C. Gate and Satwant Singh at the T.M.C.
Sentry booth on 31.10.1984 between 7.00 and 10.00 A.M. Beant Singh
managed to exchange his duty with SI Jai Narain (PW 7) and Satwant Singh
arranged to get his duty changed from Beat No. 4 at PM's house to T.M.C.
Sentry Booth situated near the latrine by misrepresenting that he was suffering
from dysentery. Beant Singh was armed with a revolver (No. J-296754, Butt
No. 140) which had 18 cartridges of 38 bore and Satwant Singh was armed
with a SAF Carbine (No. WW-13980 with Butt No. 80) and 100 cartridges of 9
mm. Both having managed to station themselves together near to T.M.C. Gate
on 31.10.1984, at about 9.10 A.M., Beant Singh opened fire from his revolver
and Satwant Singh from his carbine at Smt. Indira Gandhi as she was
approaching the T.M.C. Gate. Beant Singh fired five rounds and Satwant Singh
25 shots at her from their respective weapons. Smt. India Gandhi sustained
injuries and fell down. She was immediately taken to the AIIMS where she
succumbed to her injuries the same day. The cause of death was certified upon
a post-mortem which took place on 31.10.1984, as haemorrhage and shock due
to multiple fire arm bullet injuries which were sufficient to cause death in the
ordinary course of nature. The post-mortem report No. 1340/ 84 of the AIIMS
also opined that injuries Nos. 1 and 2, specified in the report, were sufficient to
cause death in the ordinary course of nature, as well.
12. In this report (charge-sheet) it was also mentioned that Beant Singh and Satwant
Singh laid down their weapons on the spot which had been recovered. About five
empties of Beant Singh's revolver were recovered and 13 live cartridges 38 bore from
his persons, 25 empties of SAF carbine and 6 led pieces were recovered from the spot.
About 75 live cartridges of .99 SAF carbine were recovered from the person of Satwant
Singh.. That two led pieces were recovered from the body of Smt. Indira Gandhi during
the post-mortem and two from her clothes and that the experts have opined that the
bullets recovered from the body and found from the spot were fired through the
weapons possessed by these two accused persons. The report also mentioned that
Remeshwar Dayal ASI who was following Smt. Indira Gandhi, PW 10 also received
grievous and dangerous injuries on his left thigh as a result of shots fired by the
accused which according to the medical opinion were grievous and dangerous to life.
13. It is significant that in this case the Additional Sessions Judge who tried the case
was nominated by the High Court for trial of this case and on this count some
arguments were advanced by the learned Counsel for the appellants. I will examine the
contentions a little later. Learned counsel appearing for appellants Kehar Singh and
Balbir Singh first raised some preliminary objections about the procedure at the trial.
First contention raised by him was about the venue of the trial and the manner in which
this venue was fixed by the Delhi High Court by a notification under Section 9(6)
Cr.P.C.
14. The second objection was about the trial held in jail and it was contended that
under Article 21 of the Constitution of India, 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 and accused have been deprived of a fair and open
trial as contemplated under Section 327 Cr.P.C. The other objection raised was that
under Section 327 Cr. P.C. it is only the trial Judge, the Sessions Judge who could for

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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. Learned counsel on this ground referred
to series of decisions from United States, England and also from our own courts and
contended that the open trial is a part of the fair trial which an accused is always
entitled to.
15. The other question raised by the learned Counsel for the appellants was that 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.
16. These main questions were raised by the counsel appearing for Kehar Singh and
Balbir Singh and counsel for Satwant Singh adopted these arguments and in addition
raised certain preliminary objection pertaining to the evidence of post-mortem, ballistic
expert and similar matters.
17. Learned Additional Solicitor General appearing for the respondent replied to some
of the legal arguments and also the other arguments on facts. One of the preliminary
objections sought to be raised by the learned Additional solicitor General was that 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. He also relied on
some decisions of this Court to support his contention.
18. On the preliminary objection raised by the Additional Solicitor General that in this
appeal under Article 136, we are not expected to go into the facts of the case, we will
like to observe that we are dealing with a case where the elected leader of ourpeople,
the Prime Minister of India was assassinated and who was not only an elected leader of
the majority but was very popular with the people, as observed also by the High Court
in its judgment but still we have all through maintained the cardinal principle of our
Constitution - Equality before law and the concept of rule of law in the system of
administration of justice. Although these accused persons indicated at some stage that
they are not able to engage counsel but still they could get the services of counsel of
their choice at the State expense, it must be said to the credit of the learned Counsel
Shri Ram Jethmalani and Shri R.S. Sodhi that they have done an excellent job for the
appellants and therefore we will like to thank these counsel and also the Additional
Solicitor General, who all have rendered valuable assistance to this Court.
19. In view of the importance of the case, we have heard the matter at some length
both on questions of law and also on facts.
20. The first objection raised by the learned Counsel is on the basis of Section 194 that
it was not necessary for the High Court to have allotted the case to a particular Judge.
The learned Judges of the High Court in their judgment have come to the conclusion
that the last part of the Section refers to "The High Court may by special order direct
him to try" and on the basis of this phrase the High Court in the impugned judgment,
has observed that it was even open to the accused to make an application and to get the
case transferred or allotted to a Judge. Section 194 Cr. P.C. reads:
Additional and Assistant Sessions Judge to try cases made over to them - An
Additional Sessions Judge or Assistant Sessions Judge shall try such cases as
the Sessions Judge of the division may, by general or special order, make over
to him for trial or as the High Court may, by special order, direct him to try.

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The first part of the Section clearly provides that the Sessions Judge of the Division by
general or special order is supposed to allot cases arising in a particular area or
jurisdiction to be tried by Additional or Assistant Sessions Judges appointed in the
division but the last part of this Section also authorises the High Court to allot the case
to a particular Judge keeping in view the fact that in certain cases the Sessions Judge
may not like to allot and may report to the High Court or either of the parties may move
an application for transfer and under these circumstances it may become necessary for
the High Court to allot a particular case to a particular Judge. Thus, this objection is of
no consequence. The other objection which has been raised by the learned Counsel is
about the issuance of a notification by the High Court under Section 9(6) Cr.P.C. and by
this notification the High Court purported to direct that the trial in this case shall be
held in Tihar Jail. Learned counsel appearing for the Delhi Administration on the other
hand attempted to justify such an order passed by the High Court by contending that 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 whereas
emphasis by learned Counsel for the appellants was that Section 9(6) only authorises
the High Court to fix the place of sitting generally. So far as in any particular case is
concerned, the second part of Sub-clause 6 permits the trial court with the consent of
parties to sit at any other place than the ordinary place of sitting.
21. The High Court in the impugned judgment have attempted to draw from proviso
which has been a local amendment of Uttar Pradesh. Unfortunately nothing could be
drawn from that proviso as admittedly that is not a State amendment applicable to
Delhi. Section 9(6) Cr. P.C. nowhere permits the High Court to fix the venue of a trial of
particular case at any place other than the place which is notified as the ordinary place
of sitting. It reads thus:
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.
On the basis of this language one thing is clear that so far as the High Court is
concerned it has the jurisdiction to specify the place or places where ordinarily a Court
of Sessions may sit within the division. So far as any particular case is to be taken at a
place other than the normal place of sitting it is only permissible under the second part
of sub-clause with the consent of parties and that decision has to be taken by the trial
court itself. It appears that seeing the difficulty the Uttar Pradesh amended the provision
further by adding a proviso which reads:
Provided that the court of Sessions may hold, or the High Court may, direct the
Court of Session to hold, its sitting in any particular case at any place in the
sessions division, where it appears expedient to do so for considerations of
internal security or public order, and in such cases, the consent of the
prosecution and accused shall not be necessary.
22. But it is certain that if this proviso is not on the statute book applicable to Delhi, it
can not be used as the High Court has used to interpret it. That apart, if we look at the
notification from a different angle the contention advanced by the learned Counsel for
the appellants ceases to have any force. Whatever be the terms of the notification, it is

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not disputed that it is a notification issued by the Delhi High Court under Section9 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.
23. The next main contention advanced by the counsel for the appellants is about the
nature of the trial. It was contended that under Article 21 of the Constitution g. citizen
has a right to an open public trial and as by changing the venue the trial was shifted to
Tihar Jail, it could not be said to be an open public trial. Learned counsel also referred
to certain orders passed by the trial court wherein it has been provided that
representatives of the Press may be permitted to attend and while passing those orders
the learned trial Judge had indicated that for security and other regulations it will be
open to Jail authorities to regulate the entry or issue passes necessary for coming to the
Court and on the basis of these circumstances and the situation as it was in Tihar Jail it
was contended that the trial was not public and open and therefore on this ground the
trial vitiates. It was also contended that provisions contained in Section 327 Cr.P.C.
clearly provides that a trial in a criminal case has to be public and open except if any
part of the proceedings for some special reasons to be recorded by the trial court, could
be in camera. It was contended that the High Court while exercising jurisdiction. under
Section 9(6) notified the place of trial as Tihar Jail, it indirectly did what the trial court
could have done in respect of particular, part of the proceedings and the, High. Court
has no jurisdiction under Section 327 to order trial to be held in camera or private and
in fact as the trial was shifted to Tihar Jail it ceased to be open and public trial. Learned
counsel on this part of the contention referred to decisions from American Supreme
Court and also from House of Lords. In fact, the argument advanced has been on the
basis of the American decisions where the concept of open trial has developed in due
course of time whereas so far as India is concerned here even before the Constitution
our criminal practice always contemplated a trial which is open to public.
24. In fact, the High Court in the impugned judgment was right when it referred to the
concept of administration of justice under the old Hindu Law. But apart from it even the
Criminal Procedure Code as it stood before the amendment had a provision similar to
Section 327 which was Section 352 of the Old Code and in fact it is because of this that
the criminal trial is expected to be open and public that in our 'Constitution phraseology
difference from the United States has been there. Article 21 provides:
No person shall be deprived of, his life or personal liberty except according to
procedure established by law.
It is not disputed that so far as this aspect of open trial is concerned the procedure
established by law even before our Constitution was enacted was as is provided in
Section 327 Cr.P.C. (Section 352 of the old Code):
Court to be open-(1) The place in which any. Criminal Court is held for the
purpose of inquiring into or trying any offence 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:

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 Provided that the Presiding Judge or Magistrate, may, if he thinks fit, of
order at any stage of any inquiry into, or trial of, any particular case,
that the public generally, or any particular person, shall not have
access to, or be or remain in, the room or building used by the Court.
(2) Notwithstanding anything contained in Sub-section (1), the inquiry into and
trial of rape or an offence under Section 376, Section 376A, Section 376B,
Section 376C or Section 376D of the Indian Penal Code shall be conducted in
camera:
Provided that the presiding judge may, if he thinks fit, or on an
application made by either of the parties, allow any particular per: son
to have access to, or be or remains in, the room or building used by
the court.
(3) Where any proceedings are held under Sub-section (2) it shall not be lawful
for any person to print or publish any matter in relation to any such
proceedings, except with the previous permission of the court.
This was Section 352 in the CrPC which was Act of 1898. It will be interesting to notice
the language of Section 327. It speaks that 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. The
language itself indicates that even if a trial is held in a private house or is held inside
Jail or anywhere no sooner it becomes a venue of trial of a criminal case it is deemed to
be his law 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. It appears that the
whole argument advanced on behalf of the appellants is on the basis of an assumption
inspite of the provisions of Section 327 that as the trial was shifted from the ordinary
place where the Sessions Court are sitting to Tihar Jail it automatically became a trial
which was not open to public but in our opinion in view of Section 327 this assumption,
the basis of the argument itself is without any foundation and can not be accepted and
argument on the basis of the foreign decisions loses all its significance. So far as this
country is concerned the law be very clear that as soon as a trial of a criminal case is
held whatever may be the place it will be an open trial. The only thing that it is
necessary for the appellant is to point out that in fact that it was not an open trial. It is
not disputed that there is no material at all to suggest that any one 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 and in absence of any such material on actual facts all
these legal arguments loses its significance. The authorities on which reliance were
placed are being dealt with elsewhere in the judgment.
2 5 . Learned Additional Solicitor General attempted to contend that this is not a
question of any constitutional right under Article 21 and the basis of his argument was
that 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, learned Additional Solicitor
General attempted to contend that it does not become a constitutional right at all. It is
very clear that Article 21 contemplates procedure established by law and in my opinion
the procedure established by law was as on the day on which the Constitution was
adopted and therefore it is not so easy to contend that by amending the Criminal
Procedure Code the effect of the procedure established by law indicated in Article 21

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could be taken away. The trend of decisions of this Court has clearly indicated that the
procedure must be fair and just. Even expeditious trial has been considered to be a part
of guarantee under Article 21 but in my opinion so far as the present case is concerned
it is not necessary to go so far. At present no one could dispute that the procedure
established by law as indicated in Article 21 is as provided in Section 327 and unless on
facts it is established that what is provided in Section 327 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. As indicated earlier on facts
there is nothing to indicate although learned Counsel also attempted to some extent to
suggest that there were restrictions. A person has to pass through two gates, a person
has to sign on the gate and had to have a pass or a clearance but in the modern times
especially in the context of the circumstances as they exist. On this basis it could not be
said that it ceased to be a public trial. It could not be doubted that at one time in this
Court the highest Court of the land, any one could freely walk in and sit and attend the
Court but today even in this Court there are restrictions and one has to pass through
those restrictions but still it could not be said that any one is prevented from attending
the Court and therefore merely suggesting the difficulties in reaching the Jail will not be
enough. On the other hand, learned Additional Solicitor General drew our attention to
the plan of the Jail and the situation of the premises where the trial was held and it is
not disputed that it was not that part of the Jail where the prisoners are kept but was
the Office block where there was an approach, people were permitted to reach and the
trial was held as if it was held in an ordinary place and it is in this view that as I
observed earlier that in fact what the High Court did by issuing a notification under
Section 9(6) was not to fix place of trial of this particular case in Tihar Jail. But what
could be understood is that High Court by notification made Tihar Jail also as one of the
places where a Sessions Court could ordinarily sit and in this case therefore the trial
was held at this place. As soon as a trial is held whatever the place may be the
provisions of Section 327 are attracted and it will be an open Court and every citizen
has a right to go and unless there is evidence or material on record to suggest that on
the facts in this particular case public at large was not permitted to go or some one was
prevented from attending the trial or that the trial was in camera. In fact without an
appropriate order it could not be said that what is contemplated under Section 327 or
under Article 21 was not made available to the accused in this case and therefore it
could not be contended that there is any prejudice at the trial.
26. There remains however one more question which was raised by the counsel for the
appellants that inspite of the prayer made by the accused person during the trial and
also in the High Court about the copies of the statement of witnesses who have been
examined by the prosecution and S.C.205 were also examined before the Commission
(Thakkar Commission) to be provided to the accused so that they may be in a position
to use these statements for purposes of contradiction or for other purposes. They had
also prayed for the copy of the Thakkar Commission report as the Thakkar Commission
was inquiring into the events which led to the assassination of the Prime Minister. In
fact, it was contended that 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 and they could
not avail of the material which they could use to build up their defence. According to
learned Counsel not only the accused are entitled to previous statements of witnesses
who are examined by the prosecution but they are also entitled to any material on the
basis of which they could build up their defence and raise appropriate issues at the trial.
Learned counsel relied on number of decisions and also said that the decision of the
Supreme Court in Dalmia's case is not binding as in that case the scope of Section 6 of
the Commission of Enquiry Act was not in question.

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2 7 . Whereas learned Counsel for the respondent, the Additional Solicitor General
vehemently contended that the language of Section 6 is clear that a witness, who is
examined before a Commission, is protected and that protection is such which clearly
indicates that his statement made before the Commission could" not be used against
him for any other purpose in any other proceeding either civil or criminal. The only
exception carved out in Section 6 pertains to his prosecution for perjury and therefore
when the language is clear and the exception carved out is clear enough, no other
exception could be carved out nor the Section could be interpreted in any manner.
According to the Additional Solicitor General the Commission by its regulation and
notification clearly made the enquiry a confidential affair and in addition to that there
was an amendment of the Act by Ordinance which even provided that if Government by
notification decided not to place the Report of the Commission before the House of
Parliament or Legislature then it was not necessary that it should be so placed before
the House and thus the report not only was confidential but even the Parliament had no
right to see the report and therefore neither the report nor the statements made before
the Commission could be asked for by the accused for the purposes of trial.
28. Soon after the assassination of Smt. Indira Gandhi, the Government of India by
notification dated 20.11.84 constituted a Commission under the Commission of Enquiry
Act, 1952 (the Act). The Commission was presided over by Mr. Justice M.P. Thakkar, a
sitting Judge of this Court. The terms of enquiry notified for the Committee reads:
a) the sequence of events leading and all the facts relating to, the assassination
of late Prime Minister;
b) Whether the crime could have been averted and whether there were any lefts
or dereliction of duty in this regard on the part of any one of the commission of
the crime and other individuals responsible for the security of the late Prime
Minister;
c) the deficiencies, if any, in the security system and arrangements as
prescribed or as operated to in practice which might have facilitated the
commission of the crime;
d) the deficiencies, if any, in the procedure and measures as prescribed, of as
operated in practice in attending to any ' providing medical attention to the late
Prime Minister after the commission of the crime; and whether was any lapse or
dereliction of duty in this regard on the part of the individuals responsible for
providing such medical attention;
e) whether any person or persons or agencies were responsible for coursing,
preparing and planning the assassination or whether there was any conspiracy
in this behalf, and if so, all its ramifications.
2 9 . The Commission was also asked to make recommendations as to corrective
remedies and measures that need to be taken for future.
30. It is therefore clear that out of these terms of reference the first term (a) and the
last one (e) are such that the evidence collected by the Commission could be said to be
relevant for the purposes of this trial.
31. It is significant that the Commission framed regulations under Section 8 of the Act
in regard to the procedure for enquiry and regulation 8 framed therein reads:

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 In view of the sensitive nature of enquiry the proceedings will be in camera
unless the Commission directs otherwise.
This Regulation made it clear that the proceedings of the Commission will be ordinarily
in camera. It would only be in public if the Commission so directs and it is not disputed
that so far as recording of evidence is concerned and the proceedings of the
Commission it has gone on in camera throughout and even the report, interim and the
final report. And then also it was stated by the Commission itself to be confidential. In
this perspective the prayer of the appellants has to be considered.
32. Under the Act as it stood before the amendment which was done by Ordinance No.
6 of 1986 normally the Government was supposed to place the report of the
Commission under Section 3 Sub-clause 4 of the Act before the House of the People
within six months of the submission of the report by the Commission but the
Government did not do that. The steps were taken to amend the Commission of Enquiry
Act and on May 14, 1986 the President of India promulgated an Ordinance No. 6 of
1986 namely Commission of Enquiry (Amendment) Ordinance, 1986 by which Sub-
sections 5 and 6 were introduced to Section 3 as follows:
Sub-clause 5: The provisions of Sub-section 4 shall not apply if the appropriate
Govt. is satisfied then in the interest of the sovereignty and integrity of India,
the security of the State friendly relations with foreign states or in public
interest, it is not expedient to lay before the House of People, or as the case
may be, the Legislative Assembly of the State, the report or any part thereof, of
the Commission. On the enquiry made by the Commission under Sub-section
(1) and issue a notification to that effect in the official gazette.
(6) Every notification issued under Sub-section(5)shall be laid before the House
of the People, as the case may be the Legislative Assembly of the State, if it is
as may be after the issued of the notification, and if it is not sitting, writ in
seven days of its resuming and the appropriate Govt. shall seek the approval of
the House of People, or as the case may be, the Legislative Assembly of the
State to the notification by a resolution moved within a period of 15 days
beginning with the day on which the notification is so laid before the House of
People or as the case may be the Legislative Assembly of the State makes any
modification in the notification or directs that the notification should be care in
have effect. The notification shall their after have effect as the case may be.
In pursuance of this amendment on May 15, 1986 the Central Government issued a
notification under Sub-section (5) of Section 3 satisfied that it is not Central
Government, being satisfied that. it is not expedient in the interest of the security of the
State and in public interest to lay before the House of People, the reopen submitted to
the Government on 19.11.85, and 27.2.86, by Justice M.P. Thakkar, a sitting Judge of
the Supreme Court of India appointed under the notification of the Government of India,
in the Ministry of Home Affairs No. 50 867(B), dated the 20th November 1984 thereby
notifies that the said report shall not be laid before the House of People. " It is
interesting that on 20.8.86, Ordinance No. 6 was replaced by Commission of Enquiry
(Amendment) Act, 1986 (Act No. 36 of 1986} with retrospective effect. The said
notification dated May 15,1986 was also got approved by the House of People as
required under Sub-section 6 of Section 3 and therefore after the approval of the
notification by the House of the People there remains no question of placing the report
of the Commission before the House.

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33. So far as the steps taken by the appellants are concerned, it is no doubt true that
an appropriate application in the manner in which it was moved in the High Court was
not moved in the trial court but it could not be doubted that one of the accused persons
had even sought these copies in the trial court and the same prayer has been
appropriately made during the hearing in the High Court. The proper time for awarding
the prayer was in the trial court during the pendency of the trial as the accused wanted
the copies of the previous statements of some of the prosecution witnesses which were
recorded during the enquiry before the Thakkar Commission but such a prayer was
made and rejected.
34. The High Court rejected this prayer by the impugned judgment against which the
present appeal is before us. The High Court relied on the decision of this Court in the
case of Rain Krishan Dalmiay. Justice Tendulkar 1959 SCR 279, which is referred to
henceforth as Dalmia's case. It was contended by learned Counsel for the appellants
that this case could not be accepted as an authority on interpretation of Section 6 as in
that case the scope of Section 6 was not before the Court but it was the validity of the
provisions which were challenged. Das, C.J. in Dalmia's case while examining the
challenge to the validity of the Act and the notification issued thereunder made the
following observations:
The whole purpose of setting up of a Commission of Enquiry consisting of
experts will be frustrated and the elaborate process of enquiry will be deprived
of its utility if the opinion and the advice of the expert body as to the measures
and situation disclosed calls for can not be placed before the Government for
consideration notwithstanding that doing so can not be to the prejudice of
anybody because it has no force of its own. In our view, the recommendations
of a Commission of Enquiry are of great importance to the Government in order
to enable it to make up its mind as to what legislative or administrative
measures should be adopted to eradicate the evil found or to implement the
beneficial objects it has in view. From this point of view, there can be no
objection even to the Commission of Enquiry recommending the imposition of
some form of punishment which will, in its opinion, be sufficiently deterrent to
delinquent in future. But seeing that the Commission of Enquiry has no judicial
powers and its report will purely be recommendatory and not effective proprio
vigore.
The statement made by any person before the Commission of Enquiry under Section 6
of the Act is wholly inadmissible in evidence in any further proceedings civil or criminal.
35. According to learned Counsel, in that case it was not the scope of Section 6 but the
validity of the provisions were in question and the observations were only incidental
and it can not be regarded as a binding precedent. The High Court has accepted these
observations of this Court in the judgment quoted above and in our opinion rightly. But
apart from it, we shall try to examine Section 6 itself and other provisions relevant for
the purpose as to whether the appellants i.e. the accused before the trial court were
entitled to use the copies of the statement of those prosecution witnesses who were
examined before the Thakkar Commission for purposes of cross examination or to use
the report of the Commission or whether it could be handed over or given over to the
accused for whatever purpose they intended to use. The learned Counsel for the parties
on this aspect of the matter have referred to number of decisions of various High Courts
and also some of the decisions of the English courts. They are being dealt with in the
judgment elsewhere as in my opinion it is not necessary to go into all of them except
examining the provisions of the Act itself.

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35A. Section 6 of the Commission of Enquiries Act reads:-
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.
36. On analysis of the provision, 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, according to me, is spelt out from the words
"or be used against him in any civil or criminal proceedings." Thus if we examine the
two restrictions stated above it appears that a statement given in a Commission can not
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 and in my opinion it is in the context of
these restrictions that we will have to examine the provisions of the Evidence Act which
permit the use of a previous statement of a witness and for what purpose. Section 145
read with Section 155(3) and Section 157 are the relevant provisions of the Evidence
Act. Section 145 reads:
Cross-examination as to previous statements in writing -A witness may be cross
examined as to previous statements made by him in writing or reduced into
writing and relevant to matters in question, without such writing being shown
to him, or being proved; but if it is intended to contradict him by the writing,
his attention must, before the writing can be proved, be called to those parts of
it which are to be used for the purpose of contradicting him.
This provision permits that a witness may be cross-examined as to the previous
statement made by him in writing or reduced to writing relevant to the matters in
question without such writing being shown to him or being proved. But if it is intended
to contradict him by the writing his attention must be drawn to those parts of the
writing; and it can be proved. A witness could be cross examined on his previous
statement but if a contradiction is sought to be proved then that portion of the previous
statement must be shown to him and proved in due course.
37. Section 155 of the Evidence Act provides for the use of a previous statement to
impeach the credit of a witness. Section 155 reads:
155. Impeaching credit of witness - The credit of a witness may be impeached
in the following ways by the adverse party or, with the consent of the Court, by
the party who calls hint
(1) by the evidence of persons who testify that they, from their
knowledge of the witness, believe to be unworthy of credit;
(2) by proof that the witness has been bribed, or has (accepted) the
offer of a bribe, or has received any other corrupt inducement to give
his evidence;
(3) by proof of former statements inconsistent with any part of this
evidence which is liable to be contradicted;
(4) When a man is prosecuted for rape or an attempt to ravish, it may
be shown that the prosecutor was of generally immoral character.

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3 8 . This section provides that the credit of a witness may be impeached in the
following ways by an adverse party with the consent of the Court by the party who calls
him and the third sub-clause refers to a former statement which is inconsistent with the
statement made by the witness in evidence in the case and it is permissible that the
witness be contradicted about that statement. The third provision is Section 157 which
provides for the use of a previous statement for corroboration. It reads:
157. Former statements of witness may be proved to corroborate later
testimony as to same fact. In order to corroborate the testimony of a witness,
any former statement made by such witness relating to the same fact, at or
about the time when the fact took place, or before any authority legally
competent to investigate the fact, may be proved.
A perusal of these three Sections clearly indicate that there are two purposes for which
a previous statement 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 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.
39. To my mind, there could be no other purpose for which the appellants could use
the previous statements of those witnesses. 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 contemplates and have been discussed earlier are the only
two aspects which could be the result of the use of these statements. I cannot find any
other use of such previous statements in criminal proceedings. It is therefore clear that
without going into the wider questions even a plain reading of Section 6 as discussed
above 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. The only
permissible use which has been provided under Section 6 is which has been discussed
earlier and therefore the Courts below were right in not granting the relief to the
accused.
40. The report of the Commission was also prayed for although learned Counsel 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.
41. Learned counsel for parties referred to number of decisions, Indian and foreign and
are being dealt with by my learned colleague in this judgment. But in view of the
discussions above I do not find it necessary to go further into the matter.
42. Learned counsel for Appellant No. 1 Satwant Singh also made a reference to some
of the questions which were raised before the High Court in respect of the post-mortem,
although learned Counsel appearing for the other two appellants did not seriously raise

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those questions. It is apparent that in the facts of the case as the evidence stands the
question of post-mortem or a fuller post-mortem was necessary or not loses all its
significance. There is no dispute that she died as a result of the gun shot injuries which
was inflicted by Bent Singh and Satwant Singh, one who shot from his service revolver
and other from the carbine. In view of such clear evidence about the cause of the death,
the post-mortem examination loses all its significance. It becomes important only in
cases where the cause of death is to be established and is a matter of controversy.
43. Before I go to the merits and deal with the evidence in the case, I will dispose of
the preliminary objection raised by the learned Additional Solicitor General as to the
scope of the appeals before us. He urged that under Article 136 of the Constitution this
Court is not expected to go into the questions of fact when there are concurrent findings
of fact recorded by the courts below. The learned Counsel apart from Article 136 relied
upon a decision reported in the case of Pritam Singh Versus The State
MANU/SC/0015/1950 : 1950CriLJ1270 where Fazal Ali, J. said:
It would be opposed to all principles and precedents if we were to constitute
ourselves into a third court of fact and after re-weighing the evidence come to
the conclusion different from that arrived at by the trial Judge and the High
Court.
Similarly in Ram Raj v. State of Ajmer MANU/SC/0054/1954 : 1954CriL J1313 Justice
Mahajan, Chief Justice observed at page 1134:
Unless it is shown that exceptional and special circumstances exist that
substantial and grave injustice] have been done and the casein question
presents features of sufficient gravity to warrant a review of decision appealed
against this Court does not exercise its overriding powers under Article 136(1)
of the Constitution and the circumstances that because the appeal have been
admitted by special leave does not entitle the appellant to open out the whole
case and contest all the findings of fact and raise every point which should have
been raised in the High Court. Even in the final hearing only those points can
be urged which are fit to be urged at the preliminary stage when the leave to
appeal is asked for.
Even in a recent decision MANU/SC/0090/1983 : 1983CriL J1096 Justice Thakkar
Stated:
A concurrent finding of fact can not be reopened in an appeal unless it is
established; (i) that the finding is based on no evidence or record, that the
finding is perverse, it being such as no reasonable person would have arrived at
even if the evidence was taken at its face value or thirdly, the finding is based
and built on inadmissible evidence which evidence if excluded from the vision
would negate the prosecution case or substantially discredit or impair it or;
fourthly some vital piece of evidence which would tilt the balance in favour of
the convict has been overlooked, disregarded or wrongly discarded.
These are the principles laid down by this Court and keeping these in view I will
attempt to examine the High Court judgment. I may however, mention that 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 can not 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

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reached by the High Court could not be said to be such which are concurrent or
conclusive. We were therefore put to the necessity of examining the evidence wherever
it was necessary.
4 4 . The other ground urged on behalf of the appellants relates to the relevancy of
evidence on conspiracy in view of Section 10 of the Evidence Act. It will be worth while
to deal with this question of law at this stage. Section 120-A and 120-B of the Indian
Penal Code which deal with the question of conspiracy. Section 120-A reads:
When two or more persons agree to do, or cause to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such
agreement in pursuance thereof.
Section 120-A provides for the definition of criminal conspiracy and it speaks of that
when two or more persons agree to do or cause to be done an act which is an illegal act
and Section 120-B provides for the punishment for a criminal conspiracy and it is
interesting to note that in order to prove a conspiracy it has always been felt that it was
not easy to get direct evidence. It appears that considering this experience about the
proof of conspiracy that Section 10 of the Indian Evidence Act was enacted. Section 10
reads:
Things said or done by conspirator in reference to common design - 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.
This Section mainly could be divided into two: the first part talks of where there is
reasonable ground to believe that two or more persons have conspired to commit an
offence or an actionable wrong, and it is only when this condition precedent is satisfied
that the subsequent part of the Section comes into operation and it is material to note
that this part of the Section talks of reasonable grounds to believe that two or more
persons have conspired together and this evidently has reference to Section 120-A
where it is provided "When two or more persons agree to do, or cause to be done." This
further has been safeguarded by providing a proviso that no agreement except an
agreement to commit an offence shall amount to criminal conspiracy. It will be
therefore necessary that a prima facie case of conspiracy was to be established for
application of Sec, 10. The second part of Section talks of anything said, done or
written by any one of such persons in reference to the common intention after the time
when such intention was first entertained by any one of them is relevant fact against
each of the persons believed to be so conspiring as well for the purpose for proving the
existence of the conspiracy as for the purpose of showing that any such person was a
party to it. It is clear that this second part permits the use of evidence which otherwise

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could not be used against the accused person. It is well settled that act or action of one
of the accused could not be used as evidence against the other. But an exception has
been carved out in Section 10 in cases of conspiracy. The second part operates only
when the first part of the Section is clearly established i.e. there must be reasonable
ground to believe that two or more persons have conspired together in the light of the
language of Section 120-A. It is only then the evidence of action or statements made by
one of the accused could be used as evidence against the other. in Sardar Sardul Singh
Caveeshar v. State of Maharashtra MANU/SC/0063/1963 : 1965CriL J608a , Subha Rao,
J. (as he then was) analysed the provision of Section 10. and made the following
observations:
This section, as the opening words indicate will come into play only when the
Court is satisfied that there is reasonable ground to believe that two or more
persons have conspired together to commit an offence or an actionable wrong,
that is to say, there should be a prima facie evidence that a person was a party
to the conspiracy before his acts can be used against his co-conspirators. Once
such a reasonable ground exists, anything said, done or written by one of the
conspirators in reference to the common intention, after the said intention was
entertained, is relevant against the others, not only for the purpose of proving
the existence of the conspiracy but also for proving that the other person was a
party to it. The evidentiary value of the said acts is limited by two
circumstances, namely, that the acts shall be in reference to their common
intention and in respect of a period after such intention was entertained by any
one of them. The expression 'in reference to their common intention' is very
comprehensive and it appears to have been designedly used to give it a wider
scope than the words 'in furtherance of in the English law; with the result,
anything said, done or written by a co-conspirator, after the conspiracy was
formed, will be evidence against the other before he entered the field of
conspiracy or after he left it. Another important limitation implicit in the
language is indicated by the expressed scope of its relevancy. Anything so said,
done or written is a relevant fact only 'as against each of the persons 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.' It can be used only for the purpose of proving the existence of the
conspiracy or that the other person was a party to it. It cannot be used in
favour of the other party or for the purpose of showing that such a person was
not a party to the conspiracy. In short, the Section can be analysed as follows:
(1) There shall be a prima facie evidence affording a reasonable ground for a
Court to believe that two or more persons are members of a conspiracy; (2) if
the said condition is fulfilled, anything said, done or written by any one of them
in reference to their common intention will be evidence against the other; (3)
anything said, done or written by him should have been said, done or written
by him after the intention was formed by any one of them; (4) it would also be
relevant for the said purpose against another who entered the conspiracy
whether it was said, done or written before he entered the conspiracy or after
he left it; (5) it can only be used against a co-conspirator and not in his favour.
In the light of these observations and the analysis of Section 10 we will have to
examine the evidence led by prosecution in respect of conspiracy.
45. We first take the case of Balbir Singh. Balbir Singh was an Officer of the Delhi
Police in the cadre of Sub Inspector. He was posted on duty at the PM's residence on
security. On 31.10.84 in the morning he was not on duty but his duty was to commence

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in the evening and on that day at Akbar Road gate it appears that when he reported for
duty in the normal course he was asked to go to the Security Police Lines and at about
3 A.M. on November 1, 1984 he was awakened from his sleep and his house was
searched by SI Mahipal Singh, PW 50, Constable Hari Chand, PW 17 and Inspector
Shamsheer Singh. Nothing except a printed took on Sant Bhindrawale Ex. PW 17A was
recovered. It is alleged that about 4 A.M. he was taken to Yamuna Velodrome. He was
kept there till late in the evening when he is reported to have been released. This
custody in Yamuna Velodrome is described by Sh. Kochhar, PW 75 as 'de facto custody'.
But there is no evidence or no police officer examined to say that he allowed this
accused to go in the evening on November 1,1984. Thereafter he is alleged to have
been arrested on December 3, 1984 at Najafgarh Bus-stand. When his personal search
was taken and certain articles were recovered from his possession including a piece of
paper which is Ex. PW. 26B. On December 4, 1984 he was produced before the
Magistrate who remanded him to police custody. Thereafter it is alleged that he
expressed his desire to make a confession but when produced before the Magistrate he
refused to make any statement.
46. The allegations in the charge-sheet against this accused if summarised are: that
Balbir Singh like the other accused persons has expressed his resentment openly
holding Smt. Indira Gandhi responsible for the 'Bluestar Operation'. He was planning to
commit the murder of Smt. Gandhi and he discussed these matters with Beant Singh
deceased who had similar plan to commit the murder. He also shared his intention and
prompted accused Satwant Singh to commit the murder of Smt. Gandhi and finally
discussed the matter with him on Oct. 30,1984. In the first week of September, 1984 a
falcon (baaz) happened to sit on the tree near the Reception gate of the Prime Minister's
house in the afternoon at about 1.30 P.M. Balbir Singh spotted the falcon and called
Beant Singh there. Both of them agreed that it has brought a message of the Tenth Guru
of Sikhs that they should do something by way of revenge of the 'Bluestar Operation'.
Thereafter they offered 'Ardas'.
47. These allegations, the prosecution has attempted to prove by the evidence of the
following witnesses:
i) SI Madan Lal Sharma, PW 13 ii) Constable Satish Chandra Singh, PW 52
iii)Sub Inspector Amarjit Singh, PW 44 and iv) Confession of Satwant Singh,
PW 11C.
The prosecution also strongly relied upon the, document Ex. Pw26B which was
recovered from the possession of the accused when he was arrested at Najafgarh Bus-
stand. His leave applications which are Ex. PW 26 E1 to E5 along with his post crime
conduct of absconding are also relied upon.
48. According to the accused, the document Ex. PW 26B was not recovered from his
possession as alleged by the prosecution. He also contests his arrest at Najafgarh Bus-
stand and says that it is just a make-believe arrangement. According to him, he was all
along under police custody right from the day when he was taken to Yamuna Velodrome
on November 1, 1984. In-fact he was not allowed to go put and the question of his
abscondence does not arise. He was also not put any question on abscondence under
Section 313 examination.
4 9 . Now, we will take first, the arrest of this accused on 1st November. It is not
disputed that on 1st November late at night his house was searched and a printed took -
Sant Bhindrawale was seized from his house and he was brought to Yamuna Velodrome.

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It is also not in dispute that the prosecution evidence itself indicates that upto the
evening the next day he was seen in the Yamuna Velodrome.
5 0 . It will be better here to describe what this Yamuna Velodrome is? From the
prosecution evidence what has emerged is that this is a place where there are number
of offices but Police has reserved a portion of this building to be used for interrogation
and investigation. Normally when a person or a witness is brought for interrogation or
investigation at a Police station, some record has to, be made as there is a general diary
although diaries may or may not be filled in but a duty is cast on the Station House
Officer of a Police Station to maintain the movements of the Police Officers and also to
note down the activities especially when it is connected with the investigation of an
important case. But it appears that all about the preliminary investigation of this case
was going on at Yamuna Velodrome, witnesses and persons were brought here,
detained or kept, and interrogated. We do not have any further evidence in regard to
this place.
5 1 . According to the prosecution, this accused was at Yamuna Velodrome upto the
evening of that day and thereafter he was allowed to go and then he absconded. As a
matter of fact this part of the story becomes very important in view of the further facts
alleged by the prosecution that the investigating officer got some information through
some one that this accused who was wanted would appear at the time and place
indicated. But there is no evidence as to who asked this accused to go. He was a
suspect in the criminal conspiracy. He could not have gone away of his own accord.
Some responsible officer must have taken the decision but it is unfortunate that no
officer has been examined to state that " I thought that his presence was not necessary
and therefore I allowed him to go." Learned Additional Solicitor General appearing for
the State before us also was asked if he could lay his hands at any part of the evidence
of any one of the witnesses who could say that before him this person was allowed to
go from the Yamuna Velodrome. There is no evidence on this aspect of the matter at all
and therefore we are left with the only evidence that this person was arrested at
midnight in the late hours on 1st November and was carried to Yamuna Velodrome and
was seen there by some prosecution witness till the evening of the next day.
5 2 . Then the other aspect of the matter which is of some importance is about the
prosecution allegation that he was absconding from 1st or 2nd November till 3rd Dec.
1984. It is significant that no witness has been examined to indicate that he went to
find him out either at his residence or at any other place in search of him and that he
was not available. There is also no evidence produced to indicated that inspite of the
fact that during investigation police wanted to arrest him again but he was not available
at his known address. It is perhaps of absence of evidence as to absconding the trial
court when examined this accused under Section 313 did not put him any question
about his abscondence. It is therefore clear that the abscondence as a circumstance
could not be used against him.
53. Let us now examine the story of the prosecution that this accused was arrested at
Najafgarh Bus-stand. It is alleged that Sh. Kochhar, the Investigating Officer got some
information that this accused was expected to appear at that place on 3rd December,
1984. It was not immediately after the assassination. It was after a month. The people
could come forward to become witness. But no independent witness has been examined
in support of the arrest or seizure from the accused. It may be as technically argued by
the learned Additional Solicitor General that the presence of public witnesses under the
scheme of CrPC is required when there is search and seizure from the house or property
of the accused but not when a person is arrested and something is recovered from the

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personal search. But it is well-known that in all matters where the police wants that the
story should be believed they always get an independent witness of the locality so that
that evidence may lend support to what is alleged by the police officers. Admittedly for
this arrest at Najafgarh and for the seizure of the articles from the person of the
accused there is no other evidence except the evidence of police officers. Independent
witness in this case would be all the more necessary especially in view of what has
been found above as his release after the earlier arrest is not established, and his
abscondence is not proved. In such a controversial situation the presence of an
independent witness from the public, if not of the locality, would have lent some
support to the case of the prosecution. It may also be noted that according to Mr.
Kochhar, that the accused appeared at the Bus-stand but they have not been able to
disclose from where he appeared. Whether he got down from a bus, if so from which
bus - city or outstation bus? How he appeared there is all mystery. Nobody bothered to
notice of his coming. It is said that he had a DTC bus ticket. Nobody examined it.
Perhaps there was nothing to examine. If the Police Officers had gone with prior
information to arrest the absconding accused who was involved in such an important
crime, they could have taken an independent witness with them. It is again interesting
to note that instead of searching him and performing the formalities of arrest at the
place where the accused appeared, he was taken to a place said to be the office of the
Electricity Board. The search and seizure took place there. Some articles were recovered
from his possession. Most of the articles recovered are mere personal belongings. There
was also a piece of paper since marked as Ex. PW 26/B. The Police did not think it
necessary to have an independent witness even for the seizure memo, when particularly
some important piece of evidence was recovered from his possession. The reply of the
learned Additional Solicitor General was that in law it was not necessary. The
Investigating Officer when questioned in cross-examination answered that nobody was
available or none was prepared to be a witness in this matter. It is unthinkable at a
public place and that too at the Bus-stand. Learned Additional Solicitor. General also
attempted to contend that the circumstances in Delhi after the assassination of the
Prime Minister were such that no witness was prepared to come forward. It appears that
for every problem this situation is brought as a defence but in our opinion, this would
not help them so far as this matter is concerned. We are talking of 3rd December which
was more than a month after the unrest in Delhi. It is very difficult to believe that a
citizen in this capital did not come forward to be a witness for seizure memo. The arrest
of the accused in the circumstances appears to be only a show and not an arrest in
actuality.
54. Learned Additional Solicitor General appearing for the State frankly conceded that if
the release of this accused after his arrest on 1st November is not established and his
abscondence is not proved, then the story of his arrest on 3rd December with the
recovery of the articles loses all its significance. It is indeed so.
55. In the context of what has been discussed above it is apparent that the arrest of the
accused on 3rd December and the recovery of these articles from his person have not
been proved satisfactorily and therefore could not be of any consequence against this
accused.
56. The prosecution attempted to prove the recovery of Ex. PW 26/B on the basis of an
entry in the Malkhana Register of Tuglak Road Police Station. Entry 986 in the Malkhana
Register which is made on December 3,1984 according to the learned Additional
Solicitor General, contains a verbatim copy of the seizure memo Ex. P W 35Aand it
indicates the fact of recovery of PW-26/ B and therefore proves that it was recovered
from the appellant upon his arrest and search on that day. Here again there is an

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interesting situation. There is an endorsement in the- Malkhana Register stating that the
DTC ticket which the accused carried and the paper containing the dates in English Ex.
PW 26/B were not deposited. The Malkhana Register therefore is of no help to the
prosecution. If they were taken back for any further investigation they could have made
an entry to that effect in the general diary. The nature of entry in the Malkhana Register
only shows the recovery of certain articles and a note that the two documents although
are said to be recovered but they were not brought and deposited at the Tuglak Road
Police Station. It is therefore clear that although in the seizure memo the mention of the
two documents including Ex. PW 26/B is there, they in fact did not reach the Police
Station or see the light of the day.
57. In view of these infirmities we can not accept that the accused was arrested on 3rd
December as alleged by the prosecution. So the recovery of Ex. PW 26/B is doubtful.
However, we may refer to the said document as it has been said to be one of the most
important pieces of evidence as the High Court has described it.
58. The document can be taken to have been written in the handwriting of Balbir Singh
as that is not seriously contested before us. The document is a sheet of paper in which
we find certain entries. The document is reproduced at Pages Nos. 57-58 of the
judgment prepared by my learned brother Shetty, J.
59. If this document is considered to be a memorandum of events prepared by this
accused relating to his conspiracy, why should he carry it in an atmosphere surcharged
with emotion against the Sikhs. Not only that, this person knew that he was an accused
in such an important case where whole public opinion is against him. He also knew that
he was absconding and he also knew that he was carrying in his pocket such an
important piece of evidence. Was it his intention that he should keep it readily available
so that he could oblige the prosecution whenever they needed? There is no other
possible reason why this person should keep this document with him all the time. On
our questioning the learned Additional Solicitor General about this strange behaviour of
the accused, he also could not explain as to why the accused could have thought of
carrying such a piece of paper in his pocket.
60. Apart from it, if the document is looked at as it is we see nothing in it except a
mention of few dates and few events. It even does not indicate that with those events
whether this accused was connected in any manner. It is also significant that this
document was not with this accused when his house was searched and he was arrested
on the night of 1st November, 1984. If the accused after that arrest was not released at
all and there was no occasion for him to go away then, one fails to understand as to
how this document came in his possession? The explanation suggested by the learned
Counsel for the accused appears to be the most probable. As indicated from other
evidence, the accused was preparing to give a statement or a confession and therefore
he was given the notes and he must have recorded those dates to facilitate the
statement that he was planning or he was made to give which ultimately he chose not
to give at all.
6 1 . Looking to this document the only material which could be said to be of some
significance is the words 'felt like killing'. But there is no reference after those words as
to who was intended to be killed. There is also no indication as to whose feelings are
noted in this piece of paper. There are entries in this document which refer to meetings,
visits, persons, visiting somebody's house but it is not clear as to whom they refer and
what is intended when these reference is made. Beant Singh has been referred to in this
document more than in one place. At one place, there, is a reference to Beant Singh

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with eagle. But there is no reference to a joint Ardas or this accused or Beant Singh
telling that it had brought a message or they should take revenge. The entry does not
suggest that the accused has anything to do with the eagle. If there is anything, it is
against Beant Singh.
62. A perusal of this whole document also shows that there is no reference at all to
Beant Singh and his plan to kill the Prime Minister. Nowhere it is mentioned about the
bomb or grenade with which he was planning to eliminate the Prime Minister before
15th August, 1984. There is also no reference about Beant Singh conspiring with this
accused or vice-versa. Kehar Singh is not at all in the document. Satwant Singh,
however, is mentioned against 30th October,. But it does not give an indication where?
The prosecution has connected it with the evidence of PW 52 who was the Sentry in the
Prime Minister security. We will consider the evidence of this witness a little later.
6 3 . Under these circumstances it is very clear that except the mention of 'Bluestar
Operation' and 'felt like killing' there is nothing in this document which is of any
significance. If the document is read as it is, we see nothing incriminating against this
accused. Unfortunately it appears that the High Court read in this document what was
suggested by the prosecution without considering whether it could be accepted or not in
the absence of evidence on record. Admittedly, there is no such evidence at all in this
case.
6 4 . Satish Chandra Singh, PW52, who has been produced to prove the meeting of
Balbir Singh with Satwant Singh was for the first time examined during the
investigation on 7.2.85 that is after the trial had commenced. He has stated that when
he was on duty on October 30, 1984 Satwant Singh came and talked to Balbir Singh.
But he frankly admitted that he could not follow what they talked as he did not know
Punjabi. What value we could attach to the testimony of this witness. It is impossible to
believe him.
65. In view of what we have noticed, even if the document is accepted to have been
written by the accused, still there is nothing in it on the basis of which an inference of
conspiracy could be drawn. There must be evidence to indicate that the accused was in
agreement with the other accused persons to do the act which was the ultimate object
which was achieved on 31.10.1984. This document therefore although described by the
learned Judges of the High Court as very important piece of evidence is nothing but a
scrap of paper.
66. Excluding from consideration this recovery of a piece of paper Ex. PW26/B, what
remains has been alaysed by the High Court in the judgment in the following words:
Summing up then the evidence against Balbir Singh leaving out of account for
the time being the confession of Satwant Singh and the evidence of Amarjit
Singh the position is as follows:
He was an Officer on security duty at the PM's house. He knew Beant
Singh and Satwant Singh as well. He shared the indignation of Beant
Singh against Smt. Gandhi for 'Operation Bluestar', and was in a mood
to avenge the same. He went on leave on 25.6.84 to 26.7.84. On his
return he met Beant Singh and Amarjit Singh. He was present on the
occasion of the appearance of eagle and their association on that date
is borne out by Ex. PW26/B. He is known to have talked to Satwant
Singh on 30th October, 1984.

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Unfortunately, the learned Judges of the High Court when they came to the conclusion
that Balbir Singh knew Beant Singh and Satwant Singh well, have not referred to any
piece of evidence in this case which establishes that they knew each other well. The
learned Additional Solicitor General appearing for the State also has not been able to
point out any piece of evidence on the basis of which this could be inferred. This
accused being a Sikh also is referred to but there were number of Sikh officers posted
at the house of the Prime Minister and merely because he was a Sikh it could not be
said that he became a party to the conspiracy or he was in conspiracy or he knew Beant
Singh and Satwant Singh well. Similarly as regards the observations made by the High
Court that Balbir Singh shared indignation of Beant Singh against Smt. Gandhi and was
in a mood to avenge for the 'Bluestar Operation', there is no evidence to support it.
From the testimony of SI Madan Lal Sharma, PW 30 all that we could gather is that after
the 'Bluestar Operation' Balbir Singh was in an agitated mood and he used to say that
the responsibility of damaging the Akal Takht lies with Smt. Gandhi and it would be
avenged by them. From this it cannot be inferred that Balbir Singh wanted to take
revenge against the Prime Minister along-with Beant Singh. This is not what is said by
the witness. If expression of anger or protest on the 'Bluestar Operation could be used
as a piece of evidence or a circumstance against accused then all that members of the
Sikh community who felt agitated over the 'Bluestar Operation must be held as
members of the conspiracy.
67. So far as taking leave is concerned there is nothing on the basis of which any
significance could be attached to it. There is no material to indicate that during the
leave Balbir Singh met Beant Singh or anyone else or was in any manner connected
with the conspiracy or was doing something in pursuance of the agreement of
conspiracy between them. Merely because on certain dates he was on leave no inference
could be drawn. The High Court relied on the fact that after returning from leave this
accused met Beant Singh and Amarjit Singh but on this meeting also there is no other
evidence except the evidence of Amarjit Singh PW 44 which we will deal with a little
later.
68. So far as appearance of falcon and offering of ardas is concerned it is admitted that
appearance of falcon is considered, by the Sikh community, as a sacred thing as falcon
is supposed to be a representative of the Guru and if therefore this accused and Beant
Singh offered ardas nothing could be inferred from this alone. As even the High Court
observed that:
Nothing unusual or abnormal about the incident as any religious Sikh seeing
the appearance of the falcon could offer the Ardas.
So far as meeting with Satwant Singh is concerned on October 30, 1984 the only
evidence of that fact is the evidence of Satish Chandra Singh PW 52 about whom I have
discussed little earlier and nothing more need be stated here.
69. With this we are now left with the evidence of Amarjit Singh who is an important
witness as per the prosecution. It has come on record that his statement during
investigation was recorded thrice; twice by Police under Section 161 and then under
Section 164 Cr. P.C. The first statement is Ex. PW 44 which was recorded on November
24, 1984 after 25 days of the incident and the Second statement PW 44 DB was
recorded on December 19, 1984. On December 21, 1984 the third statement PW 44A
under Section 164 of the Code came to be recorded. In the first statement there is no
involvement of Balbir Singh. The second statement according to the witness was
recorded at his own instance. He states that it did not occur to him that assassination

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was the handwork of Balbir Singh and Kehar Singh. After he had learnt about the firing
and death of Smt. Indira Gandhi he recalled certain things and went to Shri R.P. Sharma
who recorded his statement on 24.11.84. According to him, he recalled bit by bit and
that was the reason, he gave the subsequent two statements. If we carefully peruse
these statements it is clear that the entire approach of the High Court appears to be
erroneous. Amarjit Singh PW 44 states before the Court as follows:
In the first week of August 1984 I had a talk with Beant Singh. Then he told me
that he would not let Mrs. Indira Gandhi unfurled the flagon 15th August. Shri
Balbir Singh also used to tell me that if he could get a remote control bomb and
his children are sent outside India then he also could finish Mrs. Indira Gandhi.
I used to think that he was angry and I used to tell him that he should not think
in these terms. In the third week of October, 1984, Balbir Singh told me that
Beant Singh and his family have been to the Golden Temple alongwith Kehar
Singh her Phoopha. He further told that Beant Singh and Constable Satwant
Singh had taken amrit in Sector 6, R.K. Puram, New Delhi at the instance of
Kehar Singh.
In his first statement PW 44 DA which has been exhibited during his cross examination
admittedly there is no reference to Balbir Singh at all. No reference to Balbir Singh
telling the witness that if he could get a remote control bomb and his children are sent
outside India, he could also finish Mrs. Indira Gandhi. There he has stated:
In the end of September, 1984 SI Balbir Singh met me once in the Prime
Minister's house and told me that Beant Singh wanted to kill the Prime Minister
before 15th August, he (Beant Singh) agreed to kill her with a grenade and
remote control but this task was to be put off because the same could not be
arranged. Actual words being 'In do cheeson ka intezam nahin ho saka is liye
baattalgayi.
Similarly in his earlier statement Ex. PW 44 DA what this witness said
was:
In the third week of October, 1984 Beant Singh SI met me and
told me that he had procured one Constable. Actual words
being 'October ke tisare hafte main Beant Singh mujhe mila
usne bataya ki usne ek sipahi pataya hai' and that now both of
them would put an end to Smt. Indira Gandhi's life very soon.
These portions of the statement which were put and proved from Amarjit Singh as his
first statement recorded by the police clearly go to show that he had only alleged these
things against Beant Singh. What he did later was to improve upon his statement and
introduce Balbir Singh also or substitute Balbir Singh in place of Beant Singh. The only
other inference is that he was himself a party to that conspiracy. Otherwise there is no
explanation why he should keep on giving statement after statement, that too after 25
days of the incident. The second statement was recorded on December 19 and a third
statement on December 21, 1984. It clearly shows that he was a convenient witness
available to State whatever was desired from him. He appears to have become wiser
day by day and remembered bit by bit, is certainly interesting to remember.
70. It could not be doubted that the two versions given out by this witness are not such
which could easily be reconciled. In fact in his first version there is nothing against
Balbir Singh. In his second statement he has tried to introduce things against him. This
apparently is a clear improvement. It is well-settled that even delay is said to be

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dangerous and if a person who is an important witness does not open his mouth for a
long time his evidence is always looked with suspicion but here we have a witness who
even after 25 days gave his first statement and said nothing against the present accused
and then even waited for one more month and then he suddenly chose to come out with
the allegations against this accused. In our opinion, therefore, such a witness could not
be relied upon and even the High Court felt that it would not be safe to rely on the
testimony of such a witness alone.
71. Apart from it, the evidence which he has given is rather interesting. According to
him Beant Singh and Balbir Singh were so close to him that they used to keep him
informed about their plans to assassinate the Prime Minister of India. But relation with
Balbir was such that he was not even invited when Balbir Singh was married and
therefore it was nothing but casual but still he claims that he had so much of close
association that he used to be taken in confidence by these two persons. That means
that he is one of the conspirators or otherwise he would not have kept quiet without
informing his superiors as it was his duty to do when the Prime Minister was in Janger.
72. In view of this, it is clear that there is no evidence at all to establish prima facie
participation of this accused 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 this appellant.
73. Before parting with this witness, one more thing may be noted. The High Court, in
order to explain that this witness Amarjit Singh did not refer to Balbir Singh in his first
statement on 24.11.84 stated something out of imagination. The High Court has quoted
his statement on 24.11.84 in these words:
He is also reported to have said that Beant Singh had wanted to kill Smt.
Gandhi before 15th of August and that he had agreed to do so if grenade and
remote control were available.
In this context, the use of the word 'agreed' and word 'he' the High Court felt that they
refer to Balbir Singh and none else. This appears to be an explanation given by Amarjit
Singh in his statement in Court and the High Court felt that it could accept it. It is clear
that where he says 'agreed 'and 'he' in his statement on November 24, 1984 he had not
named Balbir at all. It is only now in his statement at trial that he grew wiser and made
an attempt by way of this explanation. It is rather unfortunate that the High Court felt
that this explanation should be accepted. The statement against Balbir coming for the
first time on 21st December, 1984 itself in the light of the settled criminal jurisprudence
of this country ought to have been rejected outright. Secondly, the High Court found
corroboration from the confession of Satwant Singh. So far as the statement or the
confession of Satwant Singh is concerned, it could not be used against this accused as
we have earlier indicated.
74. Thirdly so far as falcon incident is concerned, we do not know how the High Court
felt that that incident corroborates the evidence of Amarjit Singh when Amarjit Singh
alone talks of the falcon incident. There is no basis for this conclusion of the High
Court.
75. Lastly, it may be noted that so far as this accused is concerned, even Bimla Khalsa,
the wife of Beant Singh does not mention anything.

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7 6 . In the light of the discussions above, in our opinion, so far as this accused is
concerned there is no evidence at all on the basis of which his conviction could be
justified. He is therefore entitled to be acquitted.
Kehar Singh:
77. The finding of guilt recorded by the High Court against Kehar Singh is a mixture of
both relevant and irrelevant evidence adduced by the prosecution. We will consider only
those that are most important and relevant. Material evidence against Kehar Singh is the
evidence of PW 65, Bimla Khalsa wife of Be ant Singh. She was examined by the Police
on 16th January, 1985 and 19th January, 1985. This witness although has been
declared hostile, but her statement could not be discarded in to to merely because on
certain questions she has chosen not to support prosecution. It is true that her
statement for the first time during investigation was recorded on 16th January, 1985 but
it could not be disputed that after all she is the wife of the main accused in this case.
She has lost her husband on 31st October. She was placed in a situation where it would
have been very difficult for her to compose herself in a manner in which she could give
her statement immediately. It is nobody's case that she has any grudge against
anybody.
78. Important circumstances which emerge from the testimony of this witness are:
i) She was married to Beant Singh in 1976 through the good offices of her
maternal uncle Gurdeep Singh.
ii) Kehar Singh's wife Jagir Kaur hailed from Matloya and she (Bimla) used to
call Kehar Singh and Jagir Kaur Phoophi and Phoopha and there was close
friendship between the two families. Rajendra Singh son of Kehar Singh who
was a friend of Beant Singh and often used to have drinks with him. In her
statement in Court later she also stated that the wives of Rajendra Singh and
Shamsher Singh, brother of Beant Singh belonged to the same 'biradari'.
iii) Kehar Singh started visiting their house more often after theOperation
Bluestar'. Beant Singh and Kehar Singh had talked about the destruction of the
Akal Takht in the Golden Temple complex on two or three occasions but
become silent when she came.
iv) In the last week of July, Beant Singh told her that he had gone to the
Gurudwara at Moti Bagh at the instance of Kehar Singh and that they heard
highly provocative and inciting speeches there. Beant Singh had told her that he
would become a "Shaheed" and that she should look after the children or God
will look after them but he never told her that he wanted to kill Smt. Indira
Gandhi.
v) In the middle of September, 1984 the birthday of the grandson of Ujagar
Singh Sandhu was celebrated at his residence at Moti Bagh. Though they had
not received any invitation, at Kehar Singh's instance they attended the party
where many inciting speeches were delivered.
vi) On 13.10.84 her husband told her that he would be taking Amrit on
14.10.84 and when she asked for the reason, he told her that it was in order go
give up drinking.
vii) On 17.10.84 she was sent to Gurudwara Sis Ganj alongwith Kehar Singh

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 and Jagir Kaur to take Amrit there which she did.
viii) On the evening of 17.10.84 Kehar Singh came and was closeted together
with Beant Singh on the roof of the house for 15 to 18 minutes. Satwant Singh
who had come to their house on the two earlier occasions in the first week of
October, also came. First two talked in low tone and later all the three had
meals together. She asked Kehar Singh what they were talking about on the
roof. He said it was about asking somebody to take Amrit. When she said why it
needed to be kept secret from her, he became silent but he complained to her
husband later about her having questioned him.
ix) On 20th October, 1984 Beant Singh's family went to Amritsar with Kehar
Singh and his wife. Originally Beant Singh and Kehar Singh had intended to go
alone. She has said that she would also like to go there and that all of them
could go in March, 1984. Then he insisted that she should also go with him, it
was decided that Jagir Kaur should also go. At Amritsar they stayed with one
M.R.Singh that evening while Bimla Khalsa and children and Jagir kaur were
listening to the Kirtan, Beant Singh and Kehar Singh went to see the Akal Takht.
She also wanted to go but she was told she could see it next morning. Next
morning also, Beant Singh and Kehar Singh left for Akal Takht early in the
morning leaving them to follow later. When they were all there again Beant
Singh and Kehar Singh went away somewhere and returned 3 to 4 hours later.
On their way back again the two went away alone to some place for a few
minutes. They purchased a cassette and a photo of Bhindrawale. Beant Singh
stayed behind saying that to meet some one and join them at the railway
station. They returned to Delhi on 21st October, 1984,
x) On 24.10.84 Beant Singh insisted on her taking Amrit again at RXPuram Gu-
rudwara but she refused. After he returned from the night duty he went
alongwith Satwant Singh on a Scooter.
79. There is only one variation between the previous statement and evidence in Court.
That relates to identification of Satwant Singh. In the Court she attempted to s.ay that
he was a boy and later explained that at that time he had no beard but the manner in
which the boy has been described and the occasions when the boy had come to their
house, there is hardly any doubt left. Apart from it, so far as Satwant Singh is
concerned even if we omit the evidence of Bimla Khalsa, it is not material. But it could
not be doubted that from her evidence that the above circumstances have been
established.
80. Next important circumstance is the 'Vak'. It is alleged that when early morning the
worship starts in a Gurudwara, the Granth Sahib is opened at random and some
message from a page which is so opened is written on the blackboard as a 'Vak' for the
day. It is proved by Bimla Khalsa that Ex. P. 55 A was written in the handwriting of
Beant Singh. It was a 'Vak' of a particular day which was in the following terms:
One gets comfort on serving the Guru. Then miseries do not come near. Birth
and death come to an end and black (wicked) do not have effect.
About this 'Vak' having been taken out in the Gurudwara, there is some controversy as
the witness produced for that purpose Surendra Singh, PW 55 was not in a position to
produce the diary but so far as Beant Singh is concerned, the 'Vak' written by him on a
piece of paper in Yellow ink in gurumukhi with date 13.10.84 was put on it has been
proved by the evidence of Bimla Khalsa. This was admittedly found from the quarters of

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Beant Singh on 31.10.84 and it was lying inside the book 'Sant Bhindrawale'.
81. As far as the incident on 17th October is concerned, Bimla Khalsa in clear terms
stated that Kehar Singh and Beant Singh had secret talks. She wanted to know it, but
she was not given to understand. This kind of secret talk with Beant Singh which Kehar
Singh had, is a very significant circumstance. Apparently Kehar Singh being an elderly
person did not indicate to her about their plan. If the attempt of Kehar Singh was to
dissuade Beant Singh then there was no occasion for him to keep the matter secret from
his wife. On the contrary he should have indicated to his wife also what Beant Singh
was planning. These talks therefore as proved by Bimla Khalsa go a long way in
establishing Kehar Singh being a party to the conspiracy.
82. Her evidence also indicates that Beant Singh took Amrit on 14th and Beant Singh
kept his golden 'kara' and ring in the house of Kehar Singh which has been recovered
from the latter. It clearly goes to show that Kehar Singh knew why Beant Singh took
Amrit and why he handed over the golden 'kara' and ring to him. It is also clear from
the evidence of Bimla Khalsa that what transpired between Beant Singh and Kehar Singh
on 14th was not conveyed to her and she was kept in dark.
8 3 . In this background, the trip to Amritsar of Beant Singh, Kehar Singh and their
families is of some significance. On October 20, 1984 Beant Singh and Kehar Singh
alongwith their family members went to Amritsar. There is evidence indicated by Bimla
Khalsa that originally Kehar Singh and Beant Singh wanted to go alone but ultimately
they agreed that the families also could accompany. According to the evidence of Bimla
Khalsa they reached at Amritsar at about 2 to 3 P.M. and went to Darbar Sahib
Gurudwara in the evening of 20th October. While ladies and children were listening to
kirtan, Beant Singh and Kehar Singh went to see the Akal Takht. Bimla Khalsa wanted to
accompany them to see the Akal Takht but she was told to see the same on the next
morning. On the next morning i.e. on 21st October, PW 53 was woken up by Kehar
Singh and told that he would attend "Asaki War Kirtan' in Darbar Sahib. He went
alongwith Beant Singh. The ladies and children went to Darbar Sahib at 8 A.M.
alongwith PW 53. They returned home at 11 A.M. Beant Singh and Kehar Singh did not
return alongwith them. After lunch, PW 53 took the ladies and children to the railway
station. Beant Singh and Kehar Singh directly came to the railway station from where
they caught the train to New Delhi. The attempt of these two persons to keep
themselves away from the company of their wives and children speaks volume about
their sinister designs. The way in which these two avoided the company of the members
of the family and PW 53 at whose residence they were staying and the manner in which
they remained mysterious if looked at with the secret talks which they had in the house
of Bimla Khalsa earlier goes to establish that the two were doing something or
discussing something or planning something which they wanted to keep it as a secret
even from Bimla Khalsa.
8 4 . So far as 'Amrit Chhakna' ceremony is concerned or taking Amrit is concerned,
ordinarily it may not be significant. It is only a ceremony wherein a Sikh takes a vow to
lead the life of purity and giving up all worldly pleasures and evil habits but this
unfortunately is a situation which could be understood in different ways. The manner in
which Amrit has been taken by Beant Singh and even Satwant Singh has been made to
take it and even Bimla Khalsa made to take it makes it significant that in all these three
of Amrit taking Kehar Singh was always with them or atleast it could be said, was
inspiring them to have it. It also indicates that there was something in the mind of
Beant Singh which was known to Kehar Singh and which he even tried to keep a secret
from Bimla Khalsa, wife of Beant Singh and wanted Beant Singh to have a full religious

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purification and confidence.
85. There is yet another circumstance. Post-crime conduct of Kehar Singh. It is in the
evidence that on the day i.e. 31st October, 1984 although Kehar Singh claims to be on
leave, he goes to the office at 10.45 A.M. and at that time when the news reached in the
Office about the assassination PW 59 inquired from Kehar Singh as to what had
happened? Kehar Singh replied in these words:
Whosoever would take confrontation with the Panth, he would meet the same
fate.
This remark shows his guilty mind with that of Beant Singh.
86. We have discussed some of the main features of the case and it is not necessary for
us to go into other details which the High Court has discussed. These circumstances by
themselves indicate that Kehar Singh was a co-conspirator to assassinate Mrs. Gandhi.
Satwant Singh:
87. He was a Constable on security duty at the residence of the Prime Minister.
88. He was charged under Section 302 read with Section 120-B and Section 34 for
murdering the Prime Minister Smt. IndiraGandhi, secondly under Section 307 for
attempting to murder one Rameshwar Dayal, PW 10 and under Section 27 of the Arms
Act. To prove these charges, prosecution has examined Narain Singh, PW 9, Rameshwar
Dayal PW 10 and Nathu Ram PW 64 besides Sukhvir Singh PW 3 and Raj Singh PW 15.
PW 27 has deposed about the history as to how this person was recruited in the Police
in 1982 and how he happened to come to be posted at Teen Murti Lines and thereafter
in the security duty with the Prime Minister. PW 14 Duty Officer at the Teen Murti Lines
has deposed that DAP personnel was placed on duty at various duty points at the PM's
house on weekly basis from Friday to Friday by Head Constable Dayal Singh the
Company Havaldar. The daily duty maintained at Teen Murti Ex. PW 4-C shows that
Entry No. 85 that on the morning of 31.10.84 Satwant Singh was put on duty at Gate
No. 4 in the Akbar Road House and not the TMC Gate and this entry is confirmed by Ex.
PW 15 Daily diary Clerk at that time. The arms and ammunition register Ex. PW 3A at
Teen Murti Lines also shows that Satwant Singh was issued an SAF Carbine having But
No. 80 along-with five magazines and hundred live rounds of 99 of ammunition. He
signed the register in token of the receipt. PW 3, the Armoury Incharge confirms this.
There is also evidence to indicate that this person manipulated his duty and was put on
the TMC gate where ultimately the incident took place on the morning of 31.10.1984.
89. The main evidence against him is evidence of eye witnesses. The first eye witness
which I would like to refer is Narain Singh PW 9. This witness stated that he was on
duty at about 7.30 A.M. in the porch of the Prime Minister's house. According to him at
8.45 A.M. he with an umbrella took up his position near the entry gate as he came to
know that Smt. Gandhi had to go to No. 1, Akbar Road to meet certain foreign TV
representative and he was to go alongwith her holding an umbrella to protect her from
the sun. At 9.10.A.M. Smt. Gandhi came out of the house followed by Nathu Ram PW 6
and her Private Secretary Shri R.K. Dhawan. Then he moved over to the right side and
held the umbrella Ex.P.19. They approached the TMC Gate and when they were about 10
ft. therefrom he saw that the gate was open and he also saw Beant Singh on the left
side and Satwant Singh on the right side, the former in a Safari suit and the later in the
uniform and with a Carbine stengun in his hands. At that time Beant Singh took out his
revolver from the right dub and fired at Smt. Gandhi and immediately thereafter

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Satwant Singh also started firing at her. Smt. Gandhi was hit by these bullets and
injured. She fell down on the right side. Seeing this he threw the umbrella on the left
side, took out his revolver and jumped on Beant Singh. As a result of which revolver fell
from the hands. He saw Satwant Singh throwing his Carbine to the ground on his right
side. At that time Shri Bhatt, the personal guard of Smt. Gandhi and ITBP personnel
arrived there and secured Satwant Singh. Some other persons also came and secured
Beant Singh. He then ran to summon the doctor and while going, he noticed that
Rameshwar Dayal PW 10 had also sustained bullet injuries. The doctor himself came
running by then. He, Bhatt, the doctor and Nathu Ram took her to the escort car which
had arrived near and placed he/in the rear seat. By this time, Smt. Sonia Gandhi had
also arrived and Smt. Gandhi was taken to AIIMS accompanied by Bhat, Dhawan and
Fotedar on the Front seat and the doctor and Sonia Gandhi on the back seat. He went to
the Hospital in a staff car and PW 10 was taken to AIIMS in another car. There she was
taken to the eighth floor and he was given the duty of controlling the crowd. At about
10 or 10.15 A.M. R.P.Kochhar, PW 73 arrived and this witness gave a statement to
Kochhar in the doctors' room which was recorded by him and sent to Tuglak Road Police
Station which is the FIR in this Case.
90. His testimony is corroborated by the First Information Report and also by the two
other eye witnesses Rameshwar Dayal and Nathu Ram whose presence on the spot
could not be doubted. Nathu was in the personal staff of the Prime Minister and
Rameshwar Dayal himself had received injuries. Apart from it, this evidence of direct
witnesses also finds corroboration from the post-mortem report, recovery of cartridges
and arms on the spot and the evidence of the Doctor and the expert who tallied the
bullets. Under these circumstances even if the confession of this appellant Satwant
Singh 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.
91. Then is the question of sentence which was argued to some extent. But it must be
clearly understood that it is not a case where X is killed by Y on some personal
vendetta. The person killed is a lady and no less than the Prime Minister of this Country
who was the elected leader of the people. In our country we have adopted and accepted
a system wherein change of the leader is permissible by ballet and not by bullet. The
act of the accused not only takes away the life of popular leader but also undermines
our system which has been working so well for the last forty years. There is yet another
serious consideration. Beant Singh and Satwant Singh are persons who were posed on
the security duty of the Prime Minister. They are posted there to protect her from any
intruder or from any attack from outside and therefore if they themselves resort to this
kind of offence, there appears to be no reasons or no mitigating circumstance for
consideration on the question of sentence. Additionally, an unarmed lady was attacked
by these two persons with a series of bullets and it has been found that a number of
bullets entered her body. The manner in which mercilessly she was attacked by these
two persons on whom the confidence was reposed to give her protection repels any
consideration of reduction of sentence. In this view of the matter, even the conspirator
who inspired the persons who actually acted does not deserves any leniency in the
matter of sentence. In our opinion, the sentence awarded by the trial court and
maintained by the High Court appears to be just and proper.
92. In the light of the discussions above Criminal Appeal No. 180/87 filed by accused
Kehar Singh and Criminal Appeal No. 182/87 file by accused Satwant Singh are
dismissed. Conviction and sentence passed against them are maintained whereas

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Criminal Appeal No. 181/87 filed by Balbir Singh is allowed. Conviction and sentence
passed against him are set aside. He is in custody. He be set at liberty forthwith, if not
wanted in connection with any other case.
B.C. Ray, J.
93. I have perused the judgments prepared by my learned brothers Hon'ble Oza, J. and
Hon'ble Shetty, J. I fully concur with the views expressed in these judgments. However
since the matter is important I like to deal with two aspects of the case i.e. whether trial
in Tihar Jail is vitiated as it infringes the right of the accused to have open public trial
and secondly, whether the confession of accused Satwant Singh being not made in the
manner prescribed under Section 164 of the Code of Criminal procedure is admissible in
evidence and whether the same can be relied upon.
94. A Gazette Notification dated 10.5.1985 was issued under Section 9(6) of the CrPC
mentioning that the High Court of Delhi have directed that the trial of this assassination
case shall be held in the Central Jail Tihar. Another Notification of the same date was
issued whereby the High Court was pleased to order that this case will be tried by Shri
Mahesh Chandra, Addl. Sessions Judge, New Delhi. This order was made under Section
194 of the CrPC, 1973. It was contended on behalf of the appellant that Section 9(6)
empowers the High Court to specify the place where the Sessions Court shall hold its
sittings ordinarily. It does not empower the High Court to direct the holding of a court
in a place other than the usual place of sitting in court for trial of a particular case. It is
only in a particular case if the Court of Sessions is of opinion that it will be for 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. The High Court has not been given any
such power to order holding of court at any other place than the court where generally
the sittings of the Court of Sessions are held or where usually the Court of Sessions sit.
It was therefore, urged that the impugned order is wholly bad and arbitrary. It has also
been urged in this connection that speedy trial and trial in an open court is fundamental
right guaranteed by Article 21 of the Constitution of India. The holding of trial in Tihar
Jail as directed by the High Court is a clear breach of this fundamental right and as such
the entire trial is vitiated. It has also been urged in this connection that an application
was filed on behalf of the accused, Kehar Singh before the Court on 17 5.1985
objecting to the holding of trial in jail. This application, of course, was rejected by
order dated 5.6.1985 by the Magistrate by holding that the trial in Tihar Jail was an
open trial and there was no restriction for the public so minded to go to the place of
trial to witness the same. As regards the first objection the fixing of the place of sitting
of Court of Sessions was made prior to the enforcement of the CrPC Code Amendment,
1973 by the executives. Under the amended Criminal Procedure Code 1973, Section
9(6) has conferred power on the High Court to notify the place where the Court of
Sessions will ordinarily hold its sittings within the Sessions Division in conformity with
the policy of separation of judiciary from the executive. It is also to be noticed that the
High Court may notify the place or places for the sittings of the Court of Sessions. Thus
the High Court can fix a place other than the Court where the sittings are ordinarily held
if the High Court so notifies for the ends of justice. However, the use of the words
"ordinarily" by itself signifies that the High Court in exercise of its powers under Section
9(6) of the said Act may order the holding of court in a place other than the court where
sittings are ordinarily held if the High Court thinks it expedient to do so and for other
valid reasons such as security of the accused as well as of the witnesses and also of the
Court. The order of the High Court notifying the trial of a particular case in a place other
than the Court is not a judicial order but an administrative order. In this case because

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of the surcharged atmosphere and for reasons of security, the High Court ordered that
the trial be held in Tihar Jail. Therefore, it cannot be said that the trial is not an open
trial because of its having been held in Tihar Jail as there is nothing to show that the
public or the friends and relations of the accused were prevented from having access to
the place of trial provided the space of the court could accommodate them. It is also to
be noted in this connection that various representatives of the press including
representatives of international news agency like BBC etc. were allowed to attend the
proceedings in court subject to the usual regulations of the jail. It is pertinent of
mention that Section 327 of the CrPC provides that any place in which any criminal
court is held for the purpose of inquiring into or trying any offence 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. The place of trial in Tihar Jail according to this provision is
to be deemed to be an open court as the access of the public to it was not prohibited.
Moreover, it has been submitted en behalf of the prosecution that there is nothing to
show that the friends and relations of the accused or any other member of the public
was prevented from having access to the place where trial was held. On the other hand,
it has been stated that permission was granted to the friends and relations of the
accused as well as to outsiders who wanted to have access to the court to see the
proceedings subject, of course, to jail regulations. Section 2(p) Criminal Procedure
Code defines places as including a house, building, tent, vehicle and vessel. So court
can be held in a tent, vehicle, a vessel other than in court. Furthermore, the proviso to
Section 327 Criminal Procedure Code provides that the presiding Judge or Magistrate
may also at any stage of trial by order restrict access of the public in general, or any
particular person in particular in the room or building where the trial is held. In some
cases trial of criminal case is held in court and some restrictions are imposed for
security reason regarding entry into the court. Such restrictions do not detract from trial
in open court. Section 327 proviso empowers the Presiding Judge or Magistrate to make
order denying entry of public in court. No such order had been made in this case
denying access of members of public to court.
95. Trial in jail does not by itself create any prejudice to the accused and it will not be
illegal. In re T.K Ganeshan MANU/TN/0294/1950 : AIR1950Mad696 , it has been held
that:-
Section 352 empowers the magistrate to hold his court in any place, provided it
is done publicly and the Court premises is made accessible to the public, there
can be no objection to the holding of the trial within the jail compound in the
recreation room which is strictly outside the jail premises proper.
Where the public have access to the courtroom and the trial is conducted in
open view, the holding of the trial within the jail compound will not cause
prejudice to the accused and will not be illegal, merely because it relates to an
offence committed within the jail premises, where the trying Magistrate is in no
way connected with the jail department.
96. In the case of Sahai Singh and Ors. v. Emperor AIR 1917 (Lahore) 311 the trial of
the criminal case was held in jail. It was contended that the whole trial was vitiated. It
has been held that :-
There is nothing to show that admittance was refused to anyone who desired it,
or that the prisoners were unable to communicate with their friends Counsel.
No doubt, it is difficult to get Counsel to appear in jail and for that reason, if
for no other, such trials are, undesirable, but in this case the Executive

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 Authorities were of the opinion that it would be unsafe to hold the trial
elsewhere.
The trial was therefore, held to be not vitiated.
97. In Prasanta Kumar Mukherjee V The State MANU/WB/0142/1951 : AIR1952Cal91
the petitioner was tried along with several others on a charge under Section 147 I.P.C
and the trial took place inside the Hooghly Jail. In accordance with the order made by
the magistrate who was posted at Serampore. It was contended by the learned Counsel
on behalf of the accused that the trial inside the Hooghly jail was improper and
prejudiced the accused in his defence. It was observed that:-
The ordinary rule is that the trials are to be held in open Court. While there is
nothing in law to prevent a magistrate by Section 352, Criminal P,C, the very
nature of a jail building and the restrictions which are necessarily imposed on
any one visiting jail, would make it ordinarily impossible for a Magistrate to
hold open Court in Jail. There may be circumstances in which for reasons of
security for the accused or for the witnesses or for the Magistrate himself or for
the valid reason the Magistrate may think it proper to hold Court inside jail
building or some other building and restrict the free access of the public. There
is, however nothing in the record of this case to show that there was any such
reason which made the Magistrate decide in favour of holding the trial in a jail.
98. Similar observation has been made in the case of Kailash Nath Agarwal and Anr. v.
Emperor MANU/UP/0117/1947 : AIR 1947 All 436.
99. This decision has been relied upon in the case of Narwarsingh and Ors. v. State AIR
1952 Mp 1932.
100. In the case of Richmond Newspapers, Inc. v. Common Wealth of Virginia United
States Supreme Court Reports 65 L. Ed. 973 before the commencement of fourth trial
on murder charges, counsel for the defendant moved that the trial be closed to the
public. The prosecutor stated that he had no objection, and the trial court-- apparently
relying on a Virginia statute Providing that in the trial of all criminal cases, "the court
may, in its discretion, exclude from the trial any persons whose presence would impair
the conduct of a fair trial, provided that the right of the accused to a public trial shall
not be violated"-ordered that the courtroom be kept clear of all parties except the
witnesses when they testified. Later that day a newspaper and its two reporters, who
had been present at the time the order was issued but who made no objection, sought a
hearing on a motion to vacate the closure order. After a closed hearing on the motion at
which counsel for the newspaper argued that constitutional considerations mandated
that before ordering closure, the court should first decide that the right of the defendant
could be protected in no other way, the court denied the motion to vacate and ordered
the trial to continue with the press and public excluded, expressing his inclination to go
along with the defendant's motion so long as it did not completely override all rights of
everyone else. Subsequently the Judge granted a defense motion to strike the
prosecution's evidence and found the defendant not guilty of murder, and the court
granted the newspaper's motion to intervene nunc pro tunc in the case. The newspaper
then petitioned the Virginia Supreme court for writs of mandamus and prohibition and
filed an appeal from the trial court's closure order, but the Virginia Supreme Court
dismissed the mandamus and prohibition petitions and, finding no reversible error,
denied the petition for appeal. On certiorari, the United States Supreme court reversed
the order. Virginia Chief Justice who delivered the majority judgment of the Court

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expressed the view that there is a guaranteed right of the public under the First and
Fourteenth Amendments to attend criminal trials and that absent an overriding interest
articulated in findings, the trial of a criminal case must be Open to the public, and
emphasized that in the case at bar the trial judge made no findings to support closure,
no inquiry was made as to whether alternative solutions would have met the need to
insure fairness, and there was no recognition of any right under the Constitution for the
public or press to attend the trial.
101. It has already been stated hereinbefore that in the instant case though the trial
was held in Tihar Jail for reasons of security of the accused as well as of the witness
and of the court and also because of the surcharged atmosphere,there was no
restriction on the public to attend the Court, if they so minded. Therefore, this trial in
the instant case in Tihar Jail is an open trial and it does not prejudice in any manner
whatsoever the accused.
102. It has been urged referring to the case Scott and Anr. v. Scott, 1911 A11.E.R.1
that the broad principle is that the administration of justice should take place in open
court except in three case such as suits affecting wards, lunacy proceedings and thirdly
cases where secrecy, as for instance, the secrecy of a process of manufacture or
discovery or invention-trade secrets is of the essence of cause. Therefore, it recognises
that in cases where the ends of justice would be defeated if the case is not heard in
camera the court may pass order for hearing the case in camera.
1 0 3 . In the case of Cora Lillian Mcpherson V Oran Leo Mcpherson
MANU/PR/0120/1935, a divorce suit was heard in the Judge's Library. Public access to
the court-rooms was provided from a public corridor. There was no direct access to the
library, which was approached through a double swing door in the wall of the same
corridor. One wing of the door was always fixed. A brass plate with the word "private"
on it was attached to it. Both the counsel and the Judge were not in robes, and when
the Judge took his seat he announced that he was sitting in open Court, and that the
library as the place of trial there was no intention of shutting out anybody though a
regular court-room was available. It was held that:-
Every Court of justice is open to every subject of the King. Publicity is the
authentic hallmark of judicial as distinct from administrative procedure and a
divorce suit is not within any exception. The actual presence of the public is
never of course necessary. The court must be open to any who may present
themselves for administration.
104. These observation were made following the judgment in the case of Scott V Scott
(supra).
105. All cases have been considered by this Court in Naresh Shridhar Mirajkar and Ors.
v. State of Maharashtra and Anr. 1986 (3) SCR 744 wherein it has been observed that:-
...while emphasising the importance of public trial, we cannot overlook the fact
that the primary function of the judiciary is to do justice between the parties
who bring their causes before it. If a judge trying a cause is satisfied that the
very purpose of finding truth in the case would be retarded, or even defeated if
witnesses are required to give evidence subject to public gaze, is it or is it not
open to him in exercise of his inherent power to hold the trial in camera either
partly or fully? If the primary function of the trial is to do justice in causes
brought before it, then on principle, it is difficult to accede to the proposition
that there can be no exception to the rule that all causes must be tried in open

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 court. If the principle that all trials before courts must be held in public was
treated as inflexible and universal and it is held that it admits of no exceptions
whatever, cases may arise whereby following the principle, justice itself may be
defeated. That is why we feel no hesitation in holding that the high Court has
inherent jurisdiction to hold a trial in camera if the ends of justice clearly and
necessarily require the adoption of such a course.
...In this connection it is essential to remember that public trial of causes is a
means, though important and valuable, to ensure fair administration of justice,
it is a means, not an end. It is the fair administration of justice which is the end
of judicial process, and so, if ever a real conflict, arises between fair
administration of justice itself on the one hand, and public trial on the other,
inevitably, public trial may have to be regulated or controlled in the interest of
administration of justice.
106. Though public trial or trial in open court is the rule yet in cases where the ends of
justice would be defeated if the trial is held in public, it is in that case the Court has got
inherent jurisdiction to hold trial in camera. Therefore, the holding of trial in jail cannot
be said to be illegal and bad and entire trial cannot be questioned as vitiated if the High
Court thinks it expedient to hold the trial in jail. The submission of the learned Counsel
on behalf of the appellant on this issue is not sustainable,
1 0 7 . This court while considering the plea made on behalf of the detenu that the
proceedings of the advisory Board should be thrown open to the public in the case of
A.K. Roy, etc. v. Union of India and Anr MANU/SC/0051/1981 : 1982CriL J340 held
that :-
This right to a public trial is not one of the guaranteed rights under our
Constitution as it is under the 6th Amendment of the American Constitution
which secures to persons charged with crimes a public, as well as a speedy,
trial. Even under the American Constitution, the right guaranteed by the 6th
Amendment is held to be personal to the accused, which the public in general
cannot share. Considering the nature of the inquiry which the Advisory Board
has to undertake, we do not think that the interest of justice will be served
better by giving access to the public to the proceedings of the Advisory Board.
108. I do not think it expedient to consider this aspect of the matter at this juncture in
view of the explicit provision made in Section 327 of CrPC, 1973 corresponding to
Section 352 of the old Criminal procedure Code which enjoins that the place in which
any criminal court is held for the purpose of inquiring into or trying any offence shall be
deemed to be an open court.
109. The confession of accused No. 1, Satwant which was recorded in Tihar Jail by the
Link Magistrate, Shri Bharat Bhushan has been vehemently criticised by the learned
Counsel Mr. Ram Jethamalani on the ground that the confession being not recorded in
open court as required under the provisions of Section 164 of Criminal Procedure Code,
is inadmissible in evidence and it cannot be adhered to for convicting the accused. This
submission does not hold good in view of the pronouncement of this Court in Hem Raj
Devilal v. The State of Ajmer MANU/SC/0054/1954 : 1954CriL J1313 wherein it has
been held that:-
No doubt the confession was recorded in jail though ordinarily it should have
been recorded in the Court House, But that irregularity seems to have been
made because nobody seems to have realized that that was the appropriate

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 place to record it but this circumstance does not affect in this case the
voluntary character of the confession.
110. In Ram Chandra and Anr. v. State of Uttar Pradesh the appellant was sent to Naini
jail on 13th July. He was brought before a Magistrate on 17th July but he refused to
make any confession. On 7th October a letter signed by the appellant was sent to the
District" Magistrate, Allahabad, through the Superintendent of the Jail to the effect that
he wanted to make a confession. At about this time he was kept in solitary confinement
and that the police officer who was investigating this case went to the Naini Jail on 8th
and 9th October. The District Magistrate deputed Smt. Madhuri Shrivastava to record
confession. She went to Jail on 10th October and recorded the confession in jail. Before
recording the confession the magistrate did not attempt to ascertain why he was making
the confession after such a long lapse of time. She in her cross-examination said that
she thought it improper to record his statement in Court and during court hours. She
was not aware of the rules framed by the Government that confession is to be recorded
ordinarily in open court and during court hours unless for exceptional reasons it is not
feasible to do so. She also did not apprise the accused that he is not bound to make any
statement and such statement if made may be used against him. She gave the usual
certificate that the accused made the statement voluntarily. In these circumstances it
was held that the confession was not recorded in accordance with law and the accused
was not explained that he was not bound to make any statement and if any statement is
made, the same will be used against him. It was therefore, held that the confession was
not a voluntary one and the same cannot be used in convicting the accused,
111. Thus the reason for not taking into consideration the confession was that the
mandatory requirement of explaining to the accused as provided in Section 164(3) of
Criminal Procedure Code, was not observed before the recording of confession and as
such the confession was not a voluntary one. The recording of confession in jail by
itself was not held to invalidate the confession by this Court, It has been urged by Mr.
Jelhamalani that a confession not recorded in the manner prescribed 'in Section 164
Cr.P.C. and if a certificate as required to be appended below the confession is not made
in accordance with the prescribed terms, is inadmissible in evidence. In support of this
submission reference was made to Nazir Ahmed v. King Emperor
MANU/PR/0020/1936. In this case the Judicial Committee observed that the principle
applied in Taylor v. Taylor (1816) 1 C D 426 to a court, namely that where a power is
given to do a certain thing in a certain way, the thing must be done in that way or not
at all and that other methods of performance are necessarily forbidden, applied to
judicial officers making a record under Section 164 and, therefore, held that the
Magistrate could not give oral evidence of the confession made to him which he had
purported to record under Section 164 of the Code. Otherwise all the precautions and
safeguards laid down in Sections 164 and 364, both of which had to be read together,
would become of such trifling value as to be almost idle.
1 1 2 . It has been urged on behalf of the respondent that if the confession is not
recorded in proper form as prescribed by Section 164 read with Section 281 which
corresponds to earlier Section 364, it is a mere irregularity and it can be cured by
Section 463 on taking evidence that the statement was recorded duly and it has not
injured the accused in defence on merits. This question came up for consideration in
this Court in the case of State of Uttar Pradesh v. Singhara Singh and Ors.
MANU/SC/0082/1963 : [1964]4SCR485 . It has been observed that:-
What Section 533 therefore, does is to permit oral evidence to be given to
prove that the procedure laid down in 8.164 had in fact been followed when the

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 Court finds that the record produced before it does not show that that was so.
If the oral evidence establishes that the procedure had been followed, then only
can the record be admitted. Therefore, far from showing that the procedure laid
down in Section 164 is not intended to be Obligatory, Section 533 really
emphasises that that procedure has to be followed. The section only permits
oral evidence to prove that the procedure had actually been followed in certain
cases where the record which ought to show that does not on the face of it do
so.
113. In Ranbir Singh and Ors. v. Emperor MANU/SC/0082/1963 : [1964]4SCR485 the
accused was taken into the thana compound and the Magistrate who is a retired District
Judge recorded his statement in the open at 9 p.m. The Magistrate did not tell him that
he was a Magistrate and he did not satisfy himself by questioning him whether he was
making the confession voluntarily, although he states quite definitely that he was
satisfied by observation that the man was making a voluntary statement. It was
observed that the failure of the Magistrate to question the accused as to his making the
confession voluntarily is a radical and fatal defect, which cannot be cured by Section
533 of the Criminal Procedure Code. The confession was held inadmissible.
114. In the case of Partap Singh v. The Crown 1925 I.L.R. (LS) 415 it does not appear
from the confession that the provisions of Section 164(3) i.e. to explain to the person
who is to make it that he is riot bound to make a confession at all and that if he does
so, it may be used as evidence against him, were not applied by the Magistrate.
Question arose whether such a defect in the confession can be cured by Section 533
Criminal Procedure Code. It was held that a defect in form is curable and a defect in
substance is not. It was further held that "If as a matter of fact the statement was duly
recorded, that is to say, after the required explanation had been given, but the
Magistrate had failed to embody that fact in the certificate such a defect would be
curable. If the explanation had not in fact been made the statement could not be held to
have been 'duly made' and Section 533 could not be appealed to."
115. In Parg Emperor 1931 Cri.L J. 97 it has been held that in recording a confession it
is the duty of the Magistrate to satisfy himself in every reasonable way that the
confession is made voluntarily and further it is the imperative duty of the Magistrate to
record those questions and answers by means of which he has satisfied himself that the
confession is in fact voluntary. Omission warn the accused that he was making a
confession before Magistrate and to record the steps taken by the Magistrate to see that
the confession was made voluntarily is a substantial defect not curable by Section 533
Criminal Procedure Code.
116. The High Court of Orissa in the case of Ambai v. The State 1966 Cri.L J. 651 has
held that Section 533 can cure errors of forms and not of substance.
117. On a consideration of the above decisions it is manifest that if the provisions of
Section 164(2) which require that the Magistrate before recording confession shall
explain to the person making confession that he is not bound to make a confession and
if he does so it. may be used as evidence against him and upon questioning the person
if the Magistrate has reasons to believe that it is being made voluntarily then the
confession will be recorded by the Magistrate. The compliance of the Sub-section (2) of
Section 164 is therefore, mandatory and imperative and non-compliance of it renders
the confession inadmissible in evidence. Section 463 (old Section 533) of the CrPC
provides that where the questions and answers regarding the confession have not been
recorded evidence can be adduced to prove that in fact the requirements of Sub-section

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(2) of Section 164 read with Section 281 have in fact been complied with. If the Court
comes to a finding that such a compliance had in fact been made the mere omission to
record the same in the proper form will not render it inadmissible evidence and the
defect is cured under Section 463 (Section 533 of the old Criminal Procedure Code) but
when there is non-compliance of the mandatory requirement of Section 164(2) Criminal
Procedure Code and it comes out in evidence that no such explanation as envisaged in
the aforesaid Sub-section has been given to the accused by the Magistrate, this
substantial defect cannot be cured under Section 463 Criminal Procedure Code.
118. In Abdul Rajak Murtaja Dafedar v. State of Maharashtra MANU/SC/0091/1969 :
1970CriL J373 it was observed that the appellant himself never said that he made the
confession on account of any inducement or coercion on the part of the police. The
appellant was kept in jail custody for 3 days from October 25 to October 28, 1966 and
on October 28,1966 the Executive Magistrate made the preliminary questioning of the
appellant, gave him a warning and sent him back to District jail at Sangli. On the next
day the appellant was produced before the Magistrate and the confession was recorded.
The appellant had thus spent four days in judicial custody and he was not under the
influence of the investigating agency for at least four days. Again he had 24 hours to
think after he was told by the Magistrate that he was not bound to make any confession
and if he made one it would be used against him. It was held that the confession could
not be said to be not voluntary.
1 1 9 . In Dagdu and Ors. etc. v. State of Maharashtra MANU/SC/0086/1977 :
1977CriL J1206 eight confessions were recorded by a Sub-Divisional Magistrate, Devidas
Sakharam Pawar (PW23) without complying with the mandatory provisions of Section
164 of the CrPC. He made no effort to ascertain from any of the accused whether he or
she was making the confession voluntarily. Nor did he ask any of the accused whether
the police had offered or promised any incentive for making the confessional statement.
He also did not try to ascertain for how long the confessing accused were in jail custody
prior to his production for recording the confession. There was no record to show
whether the accused were sent after they were given time for reflection. In none of
these confessional statements there was a memorandum as required by Section 164 of
the CrPC that the Magistrate believed "that the confession was voluntarily made". It was
observed by this Court that:-
The failure to observe the safeguards prescribed therein are in practice
calculated to impair the evidentiary value of the confessional statements.
It was further observed that-
Considering the circumstances leading to the processional recording of the
eight confessions and the abject disregard, by the Magistrate, of the provisions
contained in Section 164 of the Code and of the instructions issued by the High
Court, we are of the opinion that no reliance can be placed on any of the
confessions.
120. In Ram Prakash v. The State of Punjab 1959 SCR 1219 it was held that:-
A voluntary and true confession made by an accused though it was
subsequently retracted by him, can be taken into consideration against a co-
accused by virtue of Section 30 of the Indian Evidence Act, but as a matter of
prudence and practice the Court should not act upon it to sustain a conviction
of the co-accused without full and strong corroboration in material particulars
both as to the crime and as to his connection with that crime.

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121. In the instant case the accused Satwant Singh who was in police custody was
produced before the Magistrate Shri S.L. Khanna on 29.11.1984. On that day the
accused made an application (Ext.PW 11/A) stating that he wanted to make a statement
about the facts concerning Indira Gandhi Assassination Case. The Magistrate directed
the remand of the accused in judicial custody till 1.12.1984 giving the accused time to
reconsider and reflect. The Magistrate also told him that he was not bound to make any
statement and if any statement is made the same might be used against him. The
Magistrate also directed to send a letter to the Secretary, Legal Aid Committee to
provide legal assistance to the accused at the expense of the State. On 1.12.1984, the
Magistrate enquired of the accused whether he wanted to make a statement whereon the
accused stated that he wanted to make statement. He allowed to consult his counsel,
Shri I.U. Khan, Advocate who conferred with him for about 15 minutes privately, as the
accused insisted that his statement be recorded, the application was sent by the
Magistrate, Shri S.K. Khanna to the Link magistrate, Shri Bharat Bhushan for recording
his statement. Before recording his statement Dr.Vijay Kumar was called to examine the
accused. Dr.Vijay Kumar stated in his report (Ext.PW 11/B) that in his opinion the
accused is fit to make his statement. It appears from Ext. PW 11/B-2 as well as from the
questions and answers which were put to the accused (Ext.PW 11/B-3) that the Link
Magistrate, Shri Bharat Bhushan warned the accused that he was not bound to make any
confessional statement and in case he does so it may be used against him during trial.
The accused in spite of this warning wanted to make a statement and thereafter the
confessional statement Ext, PW 11/C was recorded by the Link Magistrate. In the
certificate appended to the said confessional statement it has been stated that there was
no pressure upon the accused and there was neither any police officer nor any body
else within the hearing or sight when the statement was re-corded. Therefore, it
appears that the accused was put the necessary questions and was given the warning
that he was not bound to make any statement and in case any statement is made, the
same might be used against him by the prosecution for his conviction. Ofcourse, no
question was put by the Magistrate to the accused as to why he wanted to make a
confessional statement. It also appears from the evidence of the Magistrate, Shri Bharat
Bhushan (Ext. PW 11) that the confessional statement was made voluntarily by the
accused. So the defect in recording the statement in the form prescribed is cured by
Section 463 of the CrPC. It is indeed appropriate to mention in this connection that the
defect in recording the statement in appropriate form prescribed can be cured under
Section 463 of the CrPC provided the mandatory provisions of 164(2) namely explaining
to the accused that he was not bound to make a statement and if a statement is made
the same might be used against him, have been complied with and the same is
established on an examination of the Magistrate that the mandatory provisions have
been complied with.
122-123. The accused No. 1, Satwant Singh has been charged with the murder of Smt.
Indira Gandhi, Prime Minister of India Under Section 302 I.P.C. read with Section 120-B
and 34 I.P.C. He has also been charged Under Section 307 I.P.C for attempt to murder
Rameshwar Dayal. He has further been charged Under Section 27 of the Arms Act.
124. The prosecution has examined three eye witnesses namely PW-9 Narain Singh,
PW-10 Rameshwar Dayal and PW 64 Nathu Ram. Prosecution has also examined PW -49
Ganga Singh, Member of ITBP who immediately after the firing apprehended Satwant
Singh.
125. PW-9 Narain Singh, deposed that he was on duty at 1. Safdarjung Road from 7.30
A.M. on 31.10.1984 and the place of duty was, isolation cordon near the porch. He
stated that at 8.45 A.M. he took hold of the umbrella and took his position near the

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pantry gate as he came to know that the Prime Minister, Smt. Indira Gandhi had to meet
the foreign T.V. representatives in No. 1, Akbar Road. At 9.10 A.M. Prime Minister
emerged out of her house No. 1, Safdarjung Road followed by Nathu Ram (PW-64) and
her Private Secretary, R.K. Dhawan. At that time the deponent was holding the umbrella
over the head of Prime Minister to save her from sun and was moving on her right side.
They approached the TMC gate and when they were about 10 feet from there, he saw
that the gate was open. He also saw Beant singh on the left side and Satwant Singh on
the right side. The former was in safari suit and the latter i.e. Satwant singh was in his
uniform. Satwant singh had a stengun in his hands. At that time, Beant singh took out
his revolver from the right dub and fired the Prime Minister and immediately thereafter
Satwant Singh also started firing upon the Prime Minister. The Prime Minister was hit by
those bullets and injured and fell down on the right side. Seeing them firing on the
Prime Minister, he throw the umbrella and took out his revolver and jumped upon Beant
Singh whereupon his (Beant Singh) revolver fell from his hands. He secured Beant
Singh. He further stated that he noticed Rameshwar Dayal, ASI sustained bullet injuries.
The doctor himself came running by then and at his direction he, Mr. Bhatt, ACP,
Sr.Opey and Nathu Ram took her to the escort car which had arrived and placed her in
the rear seat. He further said that he went to the hospital in staff car. ASI, Rameshwar
Dayal was taken in another escort car to AIIMS. In his cross-examination he further
stated that except for the accused Satwant Singh he did not find any constable of D.A.P.
on duty on 31.10.1984 in the P.M. house on the portion through which he passed. He
also stated that it was incorrect to suggest that Satwant Singh had sustained bullet
injuries before Mrs. Indira Gandhi had been fired at. He also denied the suggestion that
he was not present on the spot or that bullets were coming from the four sides of Mrs.
Indira Gandhi. He also stated that he was stunned when he saw the bullets coming from
Beant Singh and Satwant Singh. He also stated that as Mrs. Indira Gandhi approached
towards TMC gate within its ten feet, Beant Singh took out his revolver and immediately
shot at Mrs. Indira Gandhi.
126. PW-10 ASI Rameshwar Dayal deposed to the following effect:-
I was on duty on 31.10.1984 at P.M.'s house at No. 1, Safdarjung Road from
7.30 A.M.to 1.30 P.M. It was a security duty. I was on duty of water attendant
in the pilot's car of the Prime minister. I enquired about the P.M.'s Programme.
I learnt that the Prime Minister was to attend a film shooting VCR in No. 1,
Akbar Road at 9 A.M. As I was going from No. 1, Safdarjung Road No. 1, Akbar
road and had reached the concrete road from the nursery, I saw Prime Minister,
Mrs. Indira Gandhi coming from No. 1.Safdarjung Road to No. 1,Akbar Road. At
that time, Shri RXDhawan, H.C. Narain Singh with an umbrella on the right side
a little behind her and Nathu Ram following R.K. Dhawan were also seen by me
going towards No. 1, Akbar Road from No. 1, Safdarjung Road. I also started
moving behind them. As the Prime Minister reached near the Sentry booth link
gate i.e. the TMC Gate or Akbar Road front gate, I saw Beant Singh, SI and
Satwant Singh constable with a sten-gun on duty. Satwant singh, constable was
in uniform. All of a sudden Beant singh fired at the Prime Minister with his
revolver by raising his right hand and immediately thereafter Satwant singh
also fired at the Prime Minister with his revolver by raising his right hand and
immediately thereafter Satwant Singh also fired at Prime Minister with his sten-
gun. I saw the Prime Minister falling. I ran to shield the Prime Minister and I
was also injured with the bullets. I fell down and I got up. By that time, Narain
Singh H.C. had thrown is umbrella and had run to seize and secure Beant Singh
and one Lawang Sherparan to secure them from Akbar Road side. They i.e.
Beant Singh and Satwant Singh threw their arms. In the meanwhile, ITBP staff

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 secured Beant Singh and Satwant Singh. At that time Beant Singh said,
"whatever was to be done had been done".
127. In his cross-examination, he stated that the bullet had come from Satwant Singh
side and it was that bullet which hit him. He also stated, "In fact, I could not have so
stated since I had already told in my statement dated 2.11.1984 that Satwant and Beant
Singh had fired at the Prime Minister, Smt. Indira Gandhi and injured her." He denied
th6 suggestion that he was at a distance of 60-65 feet away from the Prime Minister
when she was fired at and stated that he was at a distance of only 10/15 steps.
1 2 8 . PW.64 Nathu Ram, EX-Library Asstt. and Personnel Attendant to Smt. Indira
Gandhi stated in his deposition to the following effect:-
On 31.10.1984 I had come on my duty at 7.A.M. to No. 1, Safdarjung Road as Library
Asstt. and Personnel attendant of late P.M., Smt. Indira Gandhi. I was required to come
in the morning, open the library-cum-bed room of the late Prime Minister and get it
cleaned and dusted and then be in attendance upon the late P.M. to do what she wanted
me to do. On 31.10.1984 as well, after performing the above duties by about 9.05 A.M.,
the Prime Minister, Smt. Indira Gandhi was ready to go out with Mr. R.K. Dhawan. The
Prime Minister thereupon left the room at 9.05 A.M. fallowed by Shri R.K. Dhawan and
then followed by me. She reached the pantry gate where Shri Narain Singh was waiting
with an umbrella in his hand. As the Prime Minister emerged out of the pantry gate, Shri
Narain Singh opened the umbrella over her and held the said umbrella in his right hand
while the Prime Minister was moving towards No. 1, Akbar Road. At that time, when
P.M. was moving towards No. 1, Akbar Road, Narain Singh was with her on the right
side holding the umbrella over her while on the left side Shri R.K. Dhawan was moving
besides her talking to her. I was following Shri R.K. Dhawan at that time. I was about
two steps behind Shri R.K. Dhawan. As all of us came out of the jafarigate, I noticed
that the TMC gate was lying open and Beant Singh SI in safari suit was standing on our
left side while Satwant Singh constable in uniform was standing on the right side of
ours near the TMC gate. As we reached within about 10-11 feet of the TMC Gate, Beant
Singh took out his revolver and started firing on the Prime Minister. Immediately
thereafter Satwant Singh also started firing from his sten-gun upon the Prime Minister.
Then the Prime Minister, Mrs. Indira Gandhi fell towards her right side. We were
startled. At that very moment, Narain Singh threw umbrella and jumped upon Beant
Singh and took out his (Narain Singh's) revolver, and secured Beant Singh.
Simultaneously, Mr Bhatt and Lawang Sherpa and other uniformed persons also arrived
there and they secured Satwant Singh accused. Beant Singh and Satwant Singh threw
their arms on the ground. When Narain Singh got up for bringing the doctor, Dr. Opey
arrived on the spot. When myself, Shri Bhatt, Dr. Opey were in the process of removing
the Prime Minister, Smt. Indira Gandhi to the car along with Shri R.K. Dhawan and
Narain Singh at that time I noticed that Rameshwar Dayal was also holding his leg in
injured state on the spot.
129. In his cross-examination in answer to a question he stated "I saw two persons
namely Beant Singh and Satwant Singh with arms. Shri Narain Singh also had arm with
him and none else had the arms."
130. On a consideration and appraisement of the evidence of the eye-witnesses, it is
clear and apparent that the accused Satwant Singh and Beant Singh fired at Smt. Indira
Gandhi while she was approaching the TMC gate accompanied by her Private Secretary
Shri R.K. Dhawan, Narain Singh, H.C., PW-9 holding an umbrella on her head to protect
her from sun accompanying her on the right side and Nathu Ram following behind Shri

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R.K. Dhawan. It also appears that Beant singh first started firing from his service
revolver and simultaneously the accused No. 1, Satwant Singh also cocked his SAF
Carbine towards the Prime Minister whereon the Prime Minister fell on the ground on
her right side. It has been tried to suggest that the bullets were coming from all the
sides and accused Satwant Singh was seriously injured by such bullets and Beant Singh
died. This suggestion was however, denied by the eye-witnesses and they specifically
stated that the accused Satwant Singh and Beant Singh shot on the Prime Minister while
she was approaching the TMC gate and she was about 8-10 steps away from the TMC
gate. It has been denied that there was any firing from all the sides and it has" been
specifically stated in cross-examination that the firing was from the front side which hit
the Prime Minister and the said firing was caused by Beant Singh and Satwant Singh
from their respective service revolver and SAF Carbine. It also appears that Beant Singh
and accused Satwant Singh were apprehended by PW -9 Narain Singh HC and by the
ITBP people. It has also been specifically stated by PW-9 in cross-examination that
Satwant Singh did not sustain bullet injuries before Smt. Indira Gandhi had been fired
at. The suggestion on behalf of the defence that there was firing from all sides and
accused Satwant Singh was injured seriously and Beant Singh died by this firing has got
no basis and it is unsustainable.
131. PW-49 Ganga Singh, L/Naik of ITBP stated in his deposition to the following
effect:-
On 31.10.19841 was posted on duty at No. 1, Safdarjung Road from 6 A.M. to 2
P.M. near the main gate in guard room. At 9.15 A.M. I heard sound of firing of
bullets from the TMC gate. I along with Shri Tersem Singh, Padam Singh, Jai
Chand, Daya Nand thereupon took our carbines and went towards TMC gate
running. We found Prime Minister Madam lying in injured condition on the
floor. Near the gate there were two Sardars in white clothes, again said one
was in civil dress and the other was in uniform. The uniformed Sardar is
present in the court i.e. Satwant Singh. He had a carbine in his hand. The other
Sardar had a small weapon. Inspector Tersem Singh made them hands-up. I
secured them. I and Padam Singh secured the uniformed sardar. The sardar was
secured by Jai Chand and Daya Nand. I took into possession a ruck-sack from
the shoulder of the uniformed sardar. Thereupon, Inspector Tersem Singh
asked us to take the two sardars to the guard room. The carbine and the small
weapon were thrown on the ground. We then took both of them to the
guardroom. We left them there and Inspector Tersem Singh asked us to go to
our point of duty. I heard some fire-shots from the guard room side and the
accused No. 1 and Beant Singh were lying injured there.
132. In cross-examination he stated that "The revolver and stengun were in the hands
of the sardars before Shri Tersem Singh made them hands-up. It is incorrect to suggest
that Satwant Singh had already been hit by a bullet when I reached the TMC gate. I
secured Satwant singh from the right side. Ruck-sack was on the left shoulder. It is
obvious from the deposition of PW 49 that when he and other ITBP men took Beant
Singh and Satwant Singh to the guard room they were not at all in injured condition. It
has also been stated by this witness that the revolver and SAF carbine were in the
hands of two sardars before Shri Tersem Singh made them hands-up. This witness also
denied the suggestion that Satwant Singh had already been hit by a bullet when he
reached the TMC gate. The evidence of this witness therefore, contradicts and falsifies
the suggestion tried to be made on behalf of the defence, i.e. the accused Satwant
Singh was injured already by bullets coming from all sides.

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133. It is pertinent to mention in this connection to the evidence of PW-27ASI Mangat
Ram who was posted as ASI personnel in 2nd Battalion D.A.P. He brought the record
relating to Satwant Singh constable No. 1614 in 2nd Battalion DAP who was posted on
31.10.1984 in C & D at Teen Murti Line. He also deposed that in 27.6.1983 vide order
No. 2362-67/ASIP-22nd Battalion DAP he was posted in C Company of Teen Murti Line.
Daily diary maintained at Teen Murti 2nd Battalion DAP (Ex. PW 14/C) shows from entry
No. 85 dated 30./31.10.1984 that on the morning on 31.10. 1984, Satwant Singh
constable No. 1.614 was put on duty at Beat No. 4 in the Akbar Road House and not at
the TMC gate and this entry is confirmed by PW 15, the daily diary clerk at Teen Murti
Line. He deposed that entry No. 85 in Ex. PW 14/A is in his hand and is correct. He also
stated that the accused Satwant Singh was put on duty at Beat No. 4, Akbar Road in the
P.M. House and not at TMC gate and he was given arms as per koth register. The arms
and ammunitions register (Ex. PW 3/A) at Teen Murti Line shows that Satwant Singh
was issued a SAF Carbine (sten gun) having Butt No. 80 along vith 5 magazines and
100 live rounds of 9mm ammunition and that he signed the register in token of its
receipt, therefore this goes to show the presence of the accused Satwant Singh at the
TMC gate in the P.M. house at 1 Akbar Road on duty from 7.30 A.M. on 31.10.1984 with
a SAF Carbine Butt No. 80. There is therefore no iota of doubt that the accused No. 1,
Satwant singh was present at the TMC gate at No. 1, Akbar Road on the fateful morning
i.e. on 31.10.1984. It is to be noted in this connection that the duty of accused Satwant
Singh constable was placed at beat No. 4 Akbar Road House on 31.10,1984 as is
evident from entry No. 85 in the Rojnamcha i.e. daih/diary kept at Teen Murti Line but
he in conspiracy with Beant singh manipulated his duty at TMC gate on the plea that he
was suffering from dysentery and having loose motions. This will be obvious from the
deposition of PW 43 Constable Deshpal Singh No. 1157 who deposed that he was
posted at TMC gate 1, Safdarjung Road, P.M. House w.e.f. 28th October, 1984 from 7
p.m. to 10 p.m. and also from 7 a.m. to 10 a.m. He further stated that he was on duty
on 29th, 30th and 31st October, 1984 at these hours. On 31.10.1984 he reported in the
Line Teen Murti and then took his arm and proceeded towards his duty in P.M. House.
When he reached the P.M. House, the H.C. Kishan Lal No. 1109 told him that Satwant
Singh who was on duty on beat No. 4 was suffering from loose motions and therefore
he should give duty at beat No. 4 while Satwant Singh would take his position duty at
TMC gate, as there was latrine near TMC gate.
134. This clearly shows that Satwant Singh, accused No. 1 manipulated his duty from
beat No. 4 to TMC gate in P.M. House and so there is no doubt about his presence at the
TMC gate on 31.10.1984 from 7.30.a.m.
135. PW 12 G.R. Prasad, Principal Scientific Officer Incharge Ballistic Division, C.F.S.L.,
New Delhi had deposed to the effect that the bullet (marked BC/7) recovered from
injury No. 1 described in the post-mortem report was fired from the 9mm sten-gun
(marked W/1). He further deposed that the bullet recovered from injury No. 2 was fired
from the .38" special revolver (marked W/2). This affirms the prosecution case that the
accused Satwant Singh and deceased Beant Singh fired shots at Smt. Indira Gandhi
from their respective weapons. The deposition of these independent witnesses is
corroborated by the confessional statement PW 11/C made by the accused Satwant
Singh. Though the said confession was retracted subsequently by the accused, the same
can be used by the Court against the accused in convicting him. In Manohar Singh v.
Emperor MANU/UP/0006/1945 : AIR1946All15 it has been held that a confession made
by an accused can not be used to convict his co-accused unless there is corroborative
evidence against the co-accused but a person can be convicted solely upon his own
confession even if retracted if the Court believes it to be true.

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136. The law has been well settled in a decision of this Court in Sarwan Singh Rattan
Singh v. State of Punjab wherein it has been observed that:-
In law it is always open to the court to convict an accused on his confession
itself though he has retracted it at a later stage. Nevertheless usually Courts
require some corroboration to the confessional statement before convicting an
accused person on such a statement. What amount of corroboration would be
necessary in such a case would always be a question of fact to be determined in
the light of the circumstances of each case.
137. In the instant case the confessional statements were corroborated by independent
evidences which clearly prove, the guilt of the accused.
138. Therefore the charges against the accused Satwant Singh have been duly proved.
The concurrent findings of the Trial Court as will as the High Court that offences under
Section 302 I.P.C. read with Section 120-B, I.P.C. and Section 34 I.P.C. were proved,
must be upheld. It is a gruesome murder committed by the accused who was employed
as a security guard to protect the Prime Minister Indira Gandhi. It is one of the rarest of
rare cases in which extreme penalty of death is called for.
1 3 9 . The charge of conspiracy has been elaborately dealt with in the judgments
rendered by my learned brothers. It appears therefrom that the charge of conspiracy
against Kehar Singh with the accused Satwant Singh and Beant Singh since deceased
who are the constable and S.I. respectively posted at the P.M.'s House to look after the
security of Smt. Indira Gandhi has been proved without any reasonable doubt.
Therefore, the appeal Nos. 180 and 182 of 1987 are dismissed and the conviction and
sentence of death as confirmed by the High Court are upheld. The charge of conspiracy
against accused No. 2, Balbir Singh has not been proved and as such the appeal filed by
him i.e. Criminal Appeal No. 181 of 1987 is allowed and the judgment of the High Court
is set aside. The appellant should be set free forthwith.
K. Jagannatha Shetty, J.
1 4 0 . I agree respectfully with the conclusion reached by my learned brother, Mr.
G.L.Oza, J., in these appeals. I wish, however, in view of the importance of the
questions involved, to give my own reasons, and to which I attach importance.
141 . These appeals by special leave are directed against the conviction and sentence
awarded against the appellants by the High Court of Delhi in Criminal Appeals Nos. 28
and 29 of 1986 and murder Reference No. 2 of 1986.
142. The crime charged is not simply the murdering of a human being, but it is the
crime of assassination of the duly elected Prime Minister of the Country. The motive for
the crime was not personal, but the consequence of the action taken by the Government
in the exercise of constitutional powers and duties. In our democratic republic, if the
government becomes subversive of the purpose of its creation, the people will have the
right and duty to change it by their irresistible power of ballot and have the Government
of their own choice wisely administered. But no person who is duly constituted shall be
eliminated by privy conspiracies. Indian citizens are committed to the Constitution. They
have faith in the ballot box. They have confidence in the democratic institutions. They
have respect for constitutional authorities. The assassination of Mrs. Indira Gandhi, the
third Prime Minister of India, has, therefore, come as a rude shock. It has sent shudder
through the civilised world. The issues joined in these appeals involve the highest
interest of the whole people of this country. It is a matter of great importance to the

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people of this country that the accused be lawfully tried and lawfully convicted or
acquitted. A wrongful conviction or a wrongful acquittal may shake the confidence of
the people in our justice delivery system. The matter, therefore, requires utmost
concern.
143. Trial of the assassin and conspirators for the murder of Mrs. Indira Gandhi has
resulted in the conviction. Satwant Singh (A-1), Balbir (A-2) and Kehar Singh (A-3) are
convicted of murder under Section 302 read with Section 120-B IPC. Satwant Singh is
also convicted of murder under Section 302 read with Section 120-B and 34 IPC, as well
as under Section 307 IPC and Section 27 of the Arms Act. The trial judge has awarded
the sentence of death on all the three accused. The trial judge has also awarded other
terms of imprisonment on Satwant Singh. The Delhi High Court has confirmed the
conviction and sentence.
144. The prosecution version of the assassination may be briefly told:
That in June, 1984, the Indian Army mounted an operation known as "Blue Star
Operation" by which the Armed Force personnel entered the Golden Temple complex at
Amritsar to flush out the armed terrorists. That operation resulted in loss of life and
property as well as damage to the Akal Takht at the Golden Temple. It has offended the
religious feelings of some members of the Sikh community. Resentment was expressed
even by some of the Sikh employees of the Delhi Police posted for Prime Minister's
security. The accused persons are Sikhs by faith. They had been expressing their
resentment openly, holding the Prime Minister responsible for the action taken at
Amritsar. They became parties to a criminal conspiracy to murder Mrs. Indira Gandhi.
145. Mrs. Indira Gandhi, the Prime Minister, had returned from an official tour of Orissa
in the evening of October 30, 1984. The day followed was Wednesday. In the early
hours of every Wednesday, Mrs. Indira Gandhi used to meet people in groups. So it was
called "Darshan Day". Unfortunately, she did not adhere to that usual programme. The
"Darshan" was cancelled because of another engagement. That engagement was with
well-known actor and writer Peter Ustinov. His crew was to record an interview with
Mrs. Indira Gandhi for Irish Television. They were waiting at Bungalow No. 1., Akbaf
Road, the home office of the Prime Minister. Bungalow No. 1, Safdarjung Road was the
Official residence of the Prime Minister. The two buildings are connected by a narrow
cemented pathway. They are located practically in one campus, but separated by a
sentry gate which is known as the "TMC Gate". This is the place where hidden hands
sent shock waves to the Nation. Mrs. Indira Gandhi at about 9.10 a.m. emerged from
her house with her loyal assistants and a faithful servant. Immediately behind her was
Head Constable Narayan Singh (PW 9) holding an umbrella to protect her against the
Sun. Rameshwar Dayal (PW 10) an Assistant Sub-Inspector, Nathu Ram (PW 64), her
personal attendant and R.K.Dhawan, Special Assistant were closely following Mrs.
Gandhi. All were on the cemented pathway. Mrs. Gandhi was at the head of the
entourage. She was approaching the TMC gate where Beant Singh, SI was on the left
side while Satwant Singh, Constable was on the right side. They had managed to station
themselves together near the TMC gate. Beant Singh got exchanged his duty with S.I.
Jai Narain (PW 7). Satwant Singh ought to be at Beat No. 4. He, however, managed to
get TMC sentry booth by misrepresenting that he was suffering from dysentery. He was
given that place since it was near the latrine. Beant Singh was armed with his service
revolver while Satwant Singh had SAF Carbine. When Mrs. Gandhi reached near the TMC
gate, Beant Singh opened fire from his carbine [revolver]. Beant Singh fired five rounds
and Satwant Singh released 25 bullets at Mrs. Gandhi. Then and there Mrs. Gandhi fell
down never to get up. She was immediately rushed to the All India Institute of Medical

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Sciences (AIIMS). There a team of doctors fought their losing battle to save the life of
the slain Prime Minister.
146. Rameshwar Dayal (PW 10) who was following Mrs. Gandhi also received bullet
injuries as a result of the shots fired by the accused.
147. At the spot of the incident, the two assassins are alleged to have thrown their
arms and said "I have done what I have to do. Now you do what you have to do." The
personnel of the Indo Tibetan Boarder Police (ITBP) pounced on them and took them off
to the guard room. What happened inside the guard room is not on the record. The fact,
however, remains that both the assassins had been shot by the ITBP personnel. They
were soon removed to the hospital where Beant Singh was pronounced dead and
Satwant Singh was found to be critically injured. Satwant Singh survived after 15 days's
treatment. He is accused No. 1 in this case. Balbir Singh and Kehar Singh are the other
two accused. They are said to be parties to the conspiracy to eliminate Mrs. Indira
Gandhi. Balbir Singh was an S.I. Posted in the security at the residence of the Prime
Minister. Kehar Singh was an Assistant in the Directorate General of Supply and
Disposal, New Delhi. He is related to S.I. Beant Singh.
148. After the investigation, the charge-sheet was filed against the three appellants.
They were accused of offences under Section 120-B, 109 and 34 read with Section 302
of the IPC and also of substantive offences under Sections 302 and 307 of the IPC and
Section 27, 54 and 59 of the Arms Act. It may be mentioned that the report also names
Beant Singh as one of the accused but since he had died, the charges against him were
said to have abated.
149. In due course, the accused were committed to take their trial in the Court of
Session, In the meanwhile, the High Court of Delhi issued two notifications. By one
notification, the High Court directed the trial of the case shall be held in the Central Jail,
Tihar according to law. By another notification, the High Court directed that "the case be
tried by Shri Mahesh Chandra, Additional Sessions Judge, New Delhi." In pursuance of
the above notifications, the accused were tried in Central Jail, Tihar. The learned trial
Judge found the accused guilty of all the charges framed against them and sentenced
them as earlier stated.
150. There were two appeals before the High Court of Delhi challenging the conviction
and sentence. Satwant Singh preferred Criminal Appeal No. 28 of 1986. Balbir Singh
and Kehar Singh together preferred Criminal Appeal No. 29 of 1986. These appeals were
listed along with the Murder Reference No. 2 of 1986, before a Bench consisting of
three Judges. The learned Judges, in the course of hearing, also paid a visit to the
scene of the crime to get acquainted with the topography of the place of incident. After
considering the material on record, the High Court accepted Murder Reference 2/86 and
confirmed the conviction and the sentence of death on all the accused. The High Court
also confirmed the other sentences on Satwant Singh. Consequently, the appeals
preferred by the accused were dismissed.
151. In these appeals, the accused are challenging the validity of their trial and the
legality of their conviction and sentence. The contentions raised as to legality of the
trial admit of being summarised and formulated thus:
(i) Whether the High Court has power to direct the trial of the case at a place
other than the normal seat of the Court of Session? (ii) Whether the trial inside
the jail premises is the very antithesis of an open trial?(iii) Whether the trial
proceedings were devoid of sufficient safeguards to constitute a public trial?

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 And (iv) whether the Court's refusal to call for the statements made by certain
prosecution witnesses before the Thakkar Commission was justified?
152. I will deal with these questions in turn.
1 5 3 . Mr. R.S. Sodhi (amicus curiae) appeared for accused No. 1 and Mr. Ram
Jethmalani, Senior Advocate, (amicus curiae) appeared for accused Nos. 2 and 3 Mr. G.
Ramaswamy, Additional Solicitor General appeared for the State. Both sides of the case
have been placed before us with care and skill.
154. Patiala House is the place where the Court of Session at Delhi shall ordinarily hold
its sittings. On May 10, 1985, the Delhi High Court, however, issued a notification in
exercise of, the powers conferred by Section 9(6) of the CrPC 1973 ("Code") directing
that the session case relating State v. Satwant Singh and Ors. F.I.R., No. 241 of 1984
shall be held in the Central Jail, Tihar. The notification reads:
In exercise of the power conferred by Section 9(6) of the CrPC, 1973 the
Hon'ble the Chief Justice and Judges of this Court have been pleased to order
that the trial of the Sessions Case relating to F.I.R. No. 241/ 84 of the Arms
Act-State v. Satwant Singh and Ors., shall be held in the Central Jail, Tihar,
according to law.
BY ORDER OF THE COURT
Sd/-(USHA MEHRA)
REGISTRAR
155. On the same day, the High Court passed another order under Section 194 of the
Code designating Shri Mahesh Chandra, Additional Sessions Judge as the Judge to try
the said case. Shri Mahesh Chandra was a Senior District and Sessions Judge at the
Courts in New Delhi within the jurisdiction of which the offence was committed. The
case of the appellants is that the High Court has no jurisdiction to issue the first
notification directing the trial at Tihar Jail. It is argued that Section 9(6) confers power
on the High Court to specify by notification a place or places at which criminal trials can
be held by the Court of Session in the Union Territory of Delhi. The requirement of a
notification of the High Court of the place or places where the Court of Session will
function is intended to facilitate the process of public participation. Such a notification,
it is submitted, has already been issued by the High Court of Delhi. The whole of the
Union Territory, it is pointed out, comprises of one division or district. Originally, the
trials in cases pertaining to the entire territory were conducted only at the District Court
Complex in Tis Hazari. With the increase of Sessions Cases, the Court of Session was
also authorised to hold its sittings at the Parliament Street Courts (now shifted to
Patiala House) in New Delhi and the District Court Complex at Shahdra. It is pointed out
that Shri Mahesh Chandra himself was holding Court at Patiala House in relation to
certain other cases, and therefore, he can ordinarily hold his sittings only at Patiala
House even for the present case. It is also submitted that Section 9(6) empowers the
High Court only to specify the place or places at which all, or any class of the cases
pertaining to a division can be heard and does not empower the High Court to specify
the place or places of hearing for individual cases. The choice of any other place for
holding the sittings, wholly or partly, in any particular case lies within the power of the
trial Judge, the trial Judge may exercise that power for the general convenience of
parties and witnesses when agreed to by both the parties,
156. The High Court did not accept these submissions. In substance, it was held that
the actual location of a Court can be decided by the High Court either generally or with
reference to a particular court or even with reference to a particular case if there is

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compelling reason. The High Court also said that the fact that it is done with reference
to a particular case impairs nobody's fundamental right and is also not discriminatory,
as no offender has a vested right to be tried at the usual seat of the Court of Session.
157. The High Court, in my judgment, is right in reaching the above conclusion.
158. Section 9(6) provides:
Section 9. Court of Session
(6) The court of session shall ordinarily hold its sitting at such place or places
as the High Court may, by notification specify but, if in any particular case, the
Court of Session is of opinion that it will tend to the general convenience of the
parties and witnesses to hold its sitting 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.
159. Sub-section (6) can be conveniently divided into two parts. The first part provides
power to the High Court to notify the place or places for the Court of Session to hold its
sittings for disposal of cases. The second part deals with the power of the Court of
Session in any particular case to hold its sittings at a lace not notified by the High
Court.
160. The real question which we have to determine is, what do the words 'place or
places' mean in the context in which we find it in the first part of Sub-section (6), and
in the legal landscape of other allied provisions in the Code?
161. There is a great deal of juristic writing on the subject of statutory interpretation,
and I make no attempt here to summarise it all. I will do it elsewhere in this judgment
hen dealing with question No. (iv). Here I do not want to spend more of my time since I
need not search for the meaning of the word. The word 'place' with which we are
concerned has been defined under the Code. Section 2(p) of the code defines 'place'. It
is an inclusive definition. The 'Place' as defined includes a house, building, tent, vehicle,
and vessel.
162. "The words, too, are empirical signs, not copies or models of anything.... The
words are slippery customers...." Says COLIN CHERRY (On Human Communication at
10). The interpretation of a word must, therefore, depend upon the text and the context.
As C. Chinnappa Reddy, J., Said: "If the text is the texture, the context is what gives the
colour. Neither can be ignored. Both are important. That interpretation is best which
makes the textual interpretation match the contextual. A Statute is best interpreted
when we know why it was enacted." (Reserve Bank of India v. Peerless G.F. & I. Co.
MANU/SC/0073/1987 : AIR 1987 SC 1023.
163. The words "place or places" used in Section 9(6) apparently indicates that there
could be more than one place for the sitting of the Court of Session. The different
places may be notified by different notifications. There may be a general notification as
well as a special notification. The general notification may specify the place for the class
of cases where Court of Session shall sit for disposal. The special notification may
specify the same place or a different place in respect of a particular case.
164. Adroitly, it is said that the words and sections like men do not have their full
significance when standing alone. Like men, they are better understood by the company

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they keep. Section 9(4) and Section 194 of the Code are the closely related sections.
They may also be examined in order to understand the true meaning of the word "place
or places in the first part of Section 9(4).
165. Section 9(4) reads:
The Session Judge of the Session division, may be appointed by the High Court
to be also an additional Sessions Judge of another division, and in such case he
may sit for the disposal of cases at such place or places in the other division as
the High Court may direct.
166. Section 9(4) empowers the High Court to appoint a Sessions Judge of one division
to sit at such place or places in another division for disposal of cases. The High Court
while so appointing need not direct him to sit only at the ordinary place of sittings of
the Court of Session. There is no such constraint in Section 9(4). The High Court may
also issue a separate notification under Section 9(6) specifying the place or places
where that Session Judge should sit for disposal of cases.
167. Section 194 provides:
Additional and Assistant Sessions Judges to try cases made over to them. An
Additional Sessions Judge or Assistant Sessions Judge of the division may, by
general or special order, make over to him for trial or as the High Court may by
special order, direct him to try.
(Emphasis supplied)
168. Section 194 provides power to the High Court to make a special order directing an
Additional or Assistant Sessions Judge of the same division to try certain specified cases
or a particular case. If the High Court thinks that the Additional or Assistant Sessions
Judge should hold the Court at a specified place, a separate notification could be issued
under Section 9(6).
169. The argument that the first part of Section 9(6) should be read along with the
second part thereof has, in the context, no place. The first part provides power to the
High Court. It is an administrative power, intended to further the administration of
justice. The second part deals with the power of the Court of Session. It is a judicial
power of the Court intended to avoid hardship to the parties and witnesses in a
particular case. One is independent of and unconnected with the other. So, one should
not be confused with the other. The judicial power of the Court of Session is of limited
operation, the exercise of which is conditioned by mutual consent of the parties in the
first place. Secondly, the exercise of that power has to be narrowly tailored to the
convenience of all concerned. It cannot be made use of for any other purpose. This
limited judicial power of the Court of Session should not be put across to curtail the
vast administrative power of the High Court.
170. Section 9(6) is similar to Section 9(2) of the Old Code (Act 5 of 1898). The only
difference being that Section 9(2) conferred power on the State Government to specify
the place or places where the Court of Session should sit for the purpose of disposal of
cases. That power is now vested in the High Court. The change of authorities was made
to keep in tune with the separation of judiciary from the executive. The scope of the
sections, however, remains the same. In Lakshman v. Emperor MANU/MH/0010/1931 :
AIR 1931 Bom 313, a Special Bench of the Bombay High Court sustained the validity of
a similar notification issued under Section 9(2). Patkar, J., expressed his view (at 320):

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 Under Section 9, Sub-section (2), Criminal P.C. the Local Government may, by
general or special order, in the official gazette, direct at what place or places
the Court of Session shall hold its sittings, but until such order is made the
Court of Session shall hold its sittings as heretofore.
It is contended on behalf of the accused that the Local Government has already
issued a notification directing the Court of Session to be held at Alibag in
certain months commencing on dates to be fixed by the Sessions Judge of
Thana, and that the notification dated 5th February, 1931 does not direct any
new place where the Court of Session should hold its sitting, and further that
the notification does not order the Court of Session to hold its sitting at Alibag,
but has directed a particular Additional Sessions Judge to hold the sitting of his
Court at Alibag. Under Section 193(2) the Local Government had power to
direct Mr. Gundil, the Additional Sessions Judge, to try this particular case. The
previous orders of the Local Government were general orders under Section
9(2) and there is nothing in Section 9(2), to prevent a special order being
passed directing at what place a Court of Session should hold its sitting. If by
reason of an outbreak of plague or any other cause it becomes necessary or
expedient that a Court of Session hold its sittings in respect of all the cases at a
different place or should try a particular case at a particular place, the words of
Section 9(2) are wide enough to cover such an order. An order passed under
Section 9(2) is an administrative order passed by the Local Government, and
the special order of the Local Government in the present case directing the
Additional Sessions Judge to try this particular case at Alibag does not appear
to contravene the provisions of Section 9(2).
171. This appears to be the correct view to be taken having regard to the scheme and
object of Section 9(2) of the Old Code.
172. In Ranjit Singh v. Chief Justice and Ors. 1985 28 DLT 153 the Delhi High Court
while considering the validity of a like notification proclaimed more boldly (at 157):
Section 9(6) recognises that the Court of Session if it wishes to hold its sitting
at another place can only do so with the consent of prosecution and the
accused. As to the specifying of places of sitting of Court of Session no such
restriction is there and it is left to the best judgment of the High Court. Of
course, this does not mean that such a power can be exercised arbitrarily. But
then it must be noted that Courts have consistently held that where power is
vested in a High Official it must ordinarily be presumed that the power is
exercised in a bona fide and reasonable manner. Surely, it is a reasonable
presumption to hold that when the Full Court exercised its power, like in the
present case, directing that the Court of Session may hold its sitting at a place
other than its ordinary place of sitting considerations of the interest of justice,
expeditious hearing of the trial and the requirement of a fair and open trial are
considerations which have weighed with the High Court in issuing the impugned
notification. It should be borne in mind that very rarely does the High Court
exercises its power to direct any particular case to be tried in jail. When it does
so it is done only because of overwhelming consideration of public order,
internal security and a realisation that holding of trial outside jail may be held
in such a surcharged atmosphere as to completely spoil and vitiate the court
atmosphere where it will not be possible to have a calm, detached and fair trial.
It is these considerations which necessitated the High Court to issue the
impugned notification. Decision is taken on these policy considerations and the

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 question of giving a hearing to the accused before issuing the notification is
totally out of place in such matters. These are matters which evidently have to
be left to the good sense and to the impartiality to the Full Court in taking a
decision in a particular case.
173. It seems to me that the High Court of Delhi is also right in observing that it is
unnecessary to hear the accused or any body else before exercising the power under
Section 9(6). Such a hearing, however, is required to be given by the Court of Session
if it wants to change the normal place of sitting, in any particular case, for the general
convenience of parties and witnesses.
1 7 4 . From the foregoing discussion and the decisions, it will be clear that the
impugned notification of the High Court of Delhi directing that the trial of the case shall
be held at Tihar Jail is not ultra vires of Section 9(6) of the Code.
Re. Question(ii):
175. It is argued that public trial is a fundamental requirement of the Constitution and
is a part of the constitutional guarantee under Article 21. A public trial in jail in the very
nature of things is neither desirable nor possible. The massive walls, high gates, armed
sentries at every entrance and the register maintained for noting the names of the
visitors are said to be the inhibiting factors to keep away the potential visitors. People
generally will not venture to go to jail and it is said, that jail is notionally and
psychologically a forbidden place and can never be regarded as a proper place for
public trial.
176. The High Court rejected these contentions. The High Court, however, proceeded
on the assumption that "a public trial is a part of the Constitutional guarantee under
Article 21 of our Constitution. It is unnecessary to deal with that aspect in this case. In
A. K. Roy v. Union of India MANU/SC/0051/1981 : 1982CriL J340 Chandrachud, C.J.,
speaking for the Constitution Bench said (at 354):
The right to public trial is not one of the guaranteed rights under our
Constitution as it is under the Sixth Amendment of the American Constitution
which secures to persons charged with crimes a public, as well as speedy trial.
Even under the American Constitution, the right guaranteed by the Sixth
Amendment is held to be personal to the accused which the public in general
cannot share.
177. The right of an accused to have a public trial in our country has been expressly
provided in the code, and I will have an occasion to consider that question a little later.
The Sixth Amendment to the United States Constitution provides "In all criminal
prosecution, the accused shall enjoy the right to a speedy and public trial by an
impartial jury...". No such right has been guaranteed to the accused under our
Constitution.
178. The argument that jail can never be regarded as proper place for a public trial
appears to be too general. The jail trial is not an innovation. It has been there before
we were born. The validity of jail trial with reference to Section 352 of the code of 1898
since re-enacted as Section 327(1) has been the subject matter of several decisions of
different High Courts. The High Court in this case has examined almost all those
decisions. I will refer to some of them with laconic details. Before that, it is better to
have before us Section 352 of the Code of 1898. It reads:

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 "352. Courts to be open - The place in which any Criminal court is held for the
purpose of inquiring into or trying any offence shall be deemed an open Court,
to which the public generally may have access, so far as the same can
conveniently contain them.
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at
any stage of any inquiry into, or trial or, any particular case, that the public
generally, or any particular person, shall not have access or be or remain in,
the room or building used by the Court.
179. In Sahai Singh v. Empemr AIR 1917 Lahore 311, the accused were convicted and
sentenced in the trial held in a jail. There conviction was challenged before the High
Court at Lahore on the ground, amongst others, that the trial was vitiated because it
was held in the jail. The High Court rejected the contention stating:
It is necessary that I should first mention a contention that the whole trial is
vitiated because it was held in the jail. Counsel for some of the appellants has
referred to Section 352, Criminal Procedure Code, but there is nothing to show
that admittance was refused to any one who desired it, or that the prisoners
were unable to communicate with their friends or Counsel. No doubt it is
difficult to get Counsel to appear in the jail and for that reason, if for no other,
such trials are usually undesirable, but in this case the Executive Authorities
were of the opinion that it would be unsafe to hold the trial elsewhere.
In Kailash Nath v. Emperor MANU/UP/0117/1947 : AIR 1947 All. 436, the Allahabad
High Court said that there is no inherent illegality in jail trials if the Magistrate follows
the rules of Sections 352 and the place becomes something like an open Court.
180. The practice of having trials inside jails, as the High Court has rightly pointed out,
seems to have persisted even after the coming into force of the Constitution. In re: M.R.
Venkataraman MANU/TN/0192/1950 : AIR1950Mad441 the High Court of Madras after
referring to the decisions in Kailash Nath's case and Sahai's case, observed(at 442):
Again, if the conveyance of prisoners, and the accused to and from the court
house or other buildings, will be attended with serious danger of attack, and
the rescue of the accused or the prisoners, or with heavy cost to the
Government in providing an armed escort, it may well be within the powers of
the Judge or Magistrate, after due consideration of the public interests and after
writing down the reasons in each case, to hold the trials even inside the jail
premises, where the accused are confined.
181. In re: T.R. Ganeshan MANU/TN/0294/1950 : AIR1950Mad696 , the Madras High
Court was again called upon to consider the validity of a jail trial. In this case, the trial
was held in recreation room which was within the jail compound. The building consisted
of a hall and verandah on two sides. It was situated at some distance from the prison
walls proper. It was accessible to the public. The press reporters, some members of the
Bar and public also attended the trial proceedings. The High Court upheld the validity of
that trial. The High Court also said that in the interest of justice and fair trial of the case
itself that, in certain circumstances and in some cases, the public may be excluded.
182. The Calcutta High Court in Prasanta Kumar v. The State MANU/WB/0122/1951 :
AIR1952Cal9 and Madhya Pradesh High Court in Narwar Singh and Ors. v. State 193 at
195] recognised the right of the Magistrate to hold Court in jail for reasons of security
for accused, for witnesses or for the Magistrate himself or for other valid reasons.

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183. It may now be stated without contradiction that jail is not a prohibited place for
trial of criminal cases. Nor the jail trial can be regarded as an illegitimate trial. There
can be trial in jail premises for reasons of security to the parties, witnesses and for
other valid reasons. The enquiry or trial, however, must be conducted in open Court.
There should not be any veil of secrecy in the proceedings. There should not even be an
impression that it is a secret trial. The dynamics of judicial process should be thrown
open to the public at every stage. The public must have reasonable access to the place
of trial. The Presiding Judge must have full control of the Court house. The accused
must have all facilities to have a fair trial and all safeguards to avoid prejudice.
184. In the present case there is no reason to find fault with the decision of the High
Court to have the trial in Tihar jail. The records show that the situation then was
imperative. The circumstances which weighed with the High Court may be gathered
from a letter dated May 8, 1985, addressed by the Home Secretary to the Registrar of
the High Court. The relevant portion of the letter reads:
The case is of very special nature and of utmost importance. The assassination
of the late Prime Minister had provoked violence and security of State besides
the maintenance of law and order had become vital problems for
Administration. There is every risk of breach of public peace and disturbance of
law and order, if the trial is held in an open place. The lives of the trial Judge,
prosecutor and those otherwise involved in the prosecution of the case may be
jeopardised. It is on record that during committal proceeding 'the Magistrate
and Prosecutor concerned were threatened with dire consequences as they were
working for a successful prosecution. The circumstances in which the Hon'ble
High Court was pleased to accept the prayer of the Administration for
conducting remand and committal proceedings in Central Jail, Tihar continue to
exist. It is only for the security of the Judge, witnesses, Police Officers and Ors.
but also for the safety of the accused themselves that the trial of the case may
be held in Central Jail, Tihar.
185. The letter reveals a grim picture of the then existing situation. It is said that the
assassination of Smt. Indira Gandhi had provoked widespread violence threatening the
security of the State and the maintenance of law and order. The remand and the
committal proceedings had to be taken in Tihar Jail since the Magistrate and Prosecutor
were threatened with dire consequences. It is also said that such circumstances
continued to exist when the case came up for trial. The letter ends with a request to
have the trial of the case in Tihar Jail for the security of the Judge, witnesses, Police
Officers and also for the safety of the accused themselves. The High Court also has
taken note of the events that immediately followed the assassination of Smt. Gandhi.
Beant Singh one of the assassins was shot dead and Satwant Singh who is the accused
herein received near fatal gun shot injury.
186. That is not all. There was unprecedented violence aftermath in the national capital
and other places. Frenzied mob armed with whatever they could lay their hands were
seen besieging passing sikhs and burning their vehicles, as doctors in the hospital
fought their vain battle to save the life of Mrs. Indira Gandhi. Even President Zail
Singh's cavalcade, making its way from the Airport to the hospital was not spared. The
reaction of outrage went on unabated followed by reprisal killings and destruction of
properties. The local police force was baldly shaken. They could do little even to contain
the violence. The Army had to be deployed to stem the tide of deluge. The new Prime
Minister, Mr. Rajiv Gandhi made an unscheduled broadcast to the Nation pleading for
sanity and protection to the Sikhs. Nevertheless three days passed on with murder and

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loot leaving behind a horrendous toll of more than two thousand dead and countless
property destroyed. It is a tragedy frightening even to think of. This has been referred
to in the report (at 11 to 15) of Justice Ranganatha Misra Commission of Inquiry. These
unprecedented events and circumstances, in my judgment, would amply justify the
decision of the High Court to direct that the trial of the case should take place in Tihar
Jail.
RE: Question (iii):
187. The question herein for consideration is whether the trial held in Tihar Jail was
devoid of sufficient safeguards to constitute an open trial?
1 8 8 . As a preliminary to the consideration of this question, it is necessary to
understand the scope of Section 327(1) of the Code. The section provides:
Section 327. Court to be open:
(1) The place in which any criminal court is held for the purpose of
inquiring into or trying any offence 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:
Provided that the Presiding Judge or Magistrate may, if he
thinks fit, order at any stage of any inquiry into, or trial of, any
particular case, that the public generally, or any particular
person, shall not have access, to or be or remain in, the room
or building used by the Court.
189. The main part of Sub-sec(1) embodies the principle of public trial. It declares that
the place of inquiry and trial of any offence shall be deemed to be an open Court. It
significantly uses the words "open Court". It means that all justice shall be done openly
and the Courts shall be open to public. It means that the accused is entitled to a public
trial and the public may claim access to the trial. The Sub-section however goes on to
state that "the public generally may have access so far as the place can conveniently
contain them". What has been stated here is nothing new. It is implicit in the concept of
a public trial. The public trial does not mean that every person shall be allowed to
attend the court. Nor the court room shall be large enough to accommodate all persons.
The court may restrict the public access for valid reasons depending upon the particular
case and situation. As Judge Cooley states (Cooley's Constitutional Law, Vol. I, 8 Ed.
647):
It is also requisite that the trial be public. By this is not meant that every
person who seeks fit shall in all cases be permitted to attend criminal trials;
because there are may cases where, from the character of the charge and the
nature of the evidence by which it is to be supported, the motives to attend the
trial on the part of portions of the community would be of the worst character,
and where regard for public morals and public decency would require that at
least the young be excluded from hearing and witnessing the evidences of
human depravity which the trial must necessarily bring to light. The
requirement of a trial is for the benefit of the accused; that the public may see
he is fairly dealt with and not unjustly condemned, and that the presence of
interested spectators may keep his triers keenly alive to a sense of their
responsibility into the importance of their functions and the requirement is
fairly observed if, without partiality of favouritism, a reasonable proportion of

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 the public is suffered to attend, notwithstanding that those persons whose
presence could be of no service to the accused, and who would only be drawn
thither by a prurient curiosity, are excluded altogether.
190. The proviso to Sub-section (1) of Section 327 specifically provides power to the
Presiding Judge to impose necessary constraint on the public access depending upon
the nature of the case. It also confers power on the Presiding Judge to remove any
person from the court house. The public trial is not a disorderly trial. It is an orderly
trial. The Presiding Officer may, therefore, remove any person from the Court premises
if his conduct is undesirable. If exigencies of a situation require, the person desiring to
attend the trial may be asked to obtain a pass from the authorised person. Such visitors
may be even asked to disclose their names and sign registers. There may be also
security checks. These and other like restrictions will not impair the right of the accused
or that of the public. They are essential to ensure fairness of the proceedings and safety
to all concerned.
191. So much as regards the scope of public trial envisaged under Section 327(1) of
the code. There are yet other fundamental principles justifying the public access to
criminal trials: The crime is a wrong done more to the society than to the individual. It
involves a serious invasion of rights and liberties of some other person or persons. The
people are, therefore, entitled to know whether the justice delivery system is adequate
or inadequate. Whether it responds appropriately to the situation or it presents a
pathetic picture. This is one aspect. The other aspect is still more fundamental. When
the State representing the society seeks to prosecute a person, the State must do it
openly. As Lord Shaw said with most outspoken words (Scoot v. Scott: 1913 A.C. 417):
It is needless to quote authority on this topic from legal, philosophical, or
historical writers. It moves Bentham over and over again. 'In the darkness of
secrecy, sinister interest and evil in every shape have full swing. Only in
proportion as publicity has place can any of the checks applicable to judicial
injustice operate. Where there is no publicity there is no justice.' 'Publicity is
the very soul of justice. It is the keenest spur to exertion and the surest of all
guards against improbity. It keeps the judge himself while trying under trial.
'The security of securities is publicity.' But amongst historians the grave and
enlightened verdict of Hal-lam, in which he ranks the publicity of judicial
proceedings even higher than the rights of Parliament as a guarantee of public
security, is not likely to be forgotten: 'Civil liberty in this kingdom has two
direct guarantees; the open administration of justice according to known laws
truly interpreted, and fair constructions of evidence; and the right of
Parliament, without let or interruption, to inquire into, and obtain redress of,
public grievances. Of these, the first is by far the most indispensable; nor can
the subjects of any State be reckoned to enjoy a real freedom, where this
condition is not found both in its judicial institutions and in their constant
exercise....
192. In open dispensation of justice, the people may see that the State is not misusing
the State machinery like the Police, the Prosecutors and other public servants. The
people may see that the accused is fairly dealt with and not unjustly condemned. There
is yet another aspect. The courts like other institutions also belong to people. They are
as much human institutions as any other. The other instruments and institutions of the
State may survive by the power of the purse or might of the sword. But not the Courts.
The Courts have no such means or power. The Courts could survive only by the strength
of public confidence. The public confidence can be fostered by exposing Courts more

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and more to public gaze.
193. There are numerous benefits accruing from the public access to criminal trials.
Beth Horn-buckle Fleming in his article "First Amendment Right of Access to Pretrial
Proceeding in Criminal Cases" (Emory Law Journal, V.32(1983) P.618 to 688) neatly
recounts the benefits identified by the Supreme Court of the United States in some of
the leading decisions. He categorizes the benefits as the "fairness" and "testimonial
improvement" effects on the trial itself, and the "educative" and "sunshine" effects
beyond the trial. He then proceeds to state;
Public access to a criminal trial helps to ensure the fairness of the proceeding.
The presence of public and press encourages all participants to perform their
duties conscientiously and discourages misconduct and abuse of power by
judges, prosecutors and other participants. Decisions based on partiality and
bias are discouraged, thus protecting the integrity of the trial process. Public
access helps to ensure that procedural rights are respected and that justice is
applied equally.
"Closely related to the fairness function is the role of public access in assuring
accurate fact finding through the improvement of witness testimony. This
occurs in three ways. First, witnesses are discouraged from committing perjury
by the presence of members of the public who maybe aware of the truth.
Second, witnesses like other participants, may be encouraged to perform more
conscientiously by the presence of the public, thus improving the overall quality
of testimony. Third, unknown witnesses may be inducted to come forward and
testify if they learn of the proceedings through publicity. Public access to trials
also plays a significant role in educating the public about the criminal justice
process. Public awareness of the functioning of judicial proceedings is essential
to informed citizen debate and decision making about issues with significant
effects beyond the outcome of the particular proceeding. Public debate about
controversial topics, such as, exclusionary evidentiary rules, is enhanced by
public observation of the effect of such rules on actual trials. Attendance at
criminal trials is a key means by which the public can learn about the activities
of police, prosecutors, attorneys and other public servants, and thus make
educated decisions about how to remedy abuses within the criminal justice
system.
Finally, public access to trials serves an important "sunshine" function. Closed
proceedings, especially when they are the only judicial proceedings in a
particular case or when they determine the outcome of subsequent proceedings,
may foster distrust of the judicial system. Open proceedings, enhance the
appearance of justice and thus help to maintain public confidence in the judicial
system.
194. With these observations, let us now hark back to the safeguards provided to
ensure an open trial in this case. First, let us have an idea of the building in which the
trial took place. The Office Block of the Jail Staff was used as the Court House. It is an
independent building located at some distance from the main Jail complex. In between
there is a court-yard. This court-yard has direct access from outside. A visitor after
entering the court-yard can straight go to the Court House. He need not get into the Jail
complex. This is evident from the sketch of the premises produced before us. It appears
the person who visits the Court House does not get any idea of the Jail complex in
which there are Jail Wards and Cells. From the sketch, it will be also seen that the

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building comprises of a Court-hall, Bar room and chamber for the Judge. The Court hall
can be said to be of ordinary size. It has seating capacity for about fifty with some more
space for those who could afford to stand. The accused as undertrial prisoners were
lodged at Jail No. 1 inside the Jail complex. It was at a distance of about 1 km form the
Court House. For trial purposes, the accused were transported by van. In the Court hall,
they were provided with bullet proof enclosure.
195. This is a rough picture of the Court House where the accused had their trial. For
security reasons, the public access to trial was regulated. Those who desired to witness
the trial were required to intimate the Court in advance. The trial Judge used to accord
permission to such persons subject to usual security checks. Before commencement of
the trial of the case, the representatives of the Press and News Agencies, national and
international, approached the trial Judge for permission to cover the Court proceedings.
The representatives of BBC, London Times, New York Times and Associated Press were
some of them. The trial Judge allowed their request by his order dated May 15, 198S in
the following terms.:
I do feel that in the best traditions of the trial, the press is permitted to cover the
proceedings of the trial in the case. In view thereof I think it just and proper to allow
the press to cover the proceedings. Without exception the news agencies would have a
right to cover the proceedings through a representative. So far as individual papers are
concerned, efforts would be made to accommodate as many of them as security and
space would permit. In view thereof, it is directed that a letter be addressed to the
Supdt. Jail. Tihar with the request that the press representatives may be allowed to
enter and have access to the Court room where the proceedings would be held in the
jail. It would be open to the supdt. Jail to put such restrictions as regards security
check-up or production of accreditation cards or identity cards as he considers
necessary."
196. On May 20, 1985, Kehar Singh(A-3) filed an application before the trial court
contending that the trial should be held in open Court at Patiala House, New Delhi and
not in Central Jail, Tihar. The State filed an objection contending inter-alia:
That regulated entry has been made for the safety of the accused and for the
general safety of the others concerned with the trial. Every specific request of
the accused and others to attend the trial has been allowed by the Court. The
entry of the Court room is merely regulated in the interest of safety. A blanket
charter to permit every person known or unknown or whose antecedents are not
proper can very much defeat the ends of justice. Not only it has to be ensured
that a fair trial is given, but it has also to be kept in view that the prevailing
peculiar situation, the security is not jeopardized at any cost. The members and
the relatives of the accused have been permitted by the Court to be present at
the time of hearing. It was, therefore, not a closed or a secret trial.
xxxx xxxx xxxx
In view of the prevailing situation and peculiar circumstances the Hon'ble High
Court had vide its order chosen the venue of trial. The only proper venue for a
trial like this is jail. Even this learned Court would have opted for the same in
view of the security risk, nature of the crime, persons involved and keeping in
view the other allied circumstances of the case. It was also stated, "that the
case as is and product of misguided fundamentalism and terrorism. In the
prevailing atmosphere in the country, the accused as well as the witnesses are

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 in grave danger of outside terrorists attacks and this has to be safeguarded.
Transport of accused persons at set times from and to the jail is fraught with
danger.
197. The application of the accused and the objections thereof were considered and
disposed of by order dated June 5, 1984. The relevant portion of the order reads:
...There can be no dispute that public has a right to know but it is precisely for
this purpose that National and International Press has been allowed to be
present in the Court during the entire trial. The Press is the most powerful
watch-dog of the public interest and, certainly, we in India have not only free
but also a very responsible press and interest of general public are quite safe in
their hands. It is not merely Indian press representatives and the news agencies
which have been allowed to come to attend the trial but the International
agency like BBC, London times, New York Times and Associated Press have also
been allowed and admitted and are, in fact, present.
XXX xxxx XXX
It can be categorically declared and placed on record by this Court that all press
representatives and news agencies whosoever have sought permission have
been without exception granted necessary permission by this Court. I am sure
right of public to know about the trial has been more than assured by the
presence of the Press in the Court. The suggestion of learned defence counsel
that presence of Press is not sufficient guarantee is not a fair comment on a
free, fair and responsible Press of India. It would be proper to mention here
that to ensure fair trial and judicious administration of justice the presence of
defence counsel, the Press and the relations of the accused persons has been
allowed....
198. With reference to the people in general, it was pertinently observed:
Nonetheless, space permitting, this Court would not be averse or disinclined to
allow public men also to attend the proceedings subject to usual security check-
up.
1 9 9 . The learned trial Judge did not make the aforesaid observation as an empty
formality. True to his words, he did permit access to the members of the public also. He
permitted even the Law Students in batches to witness the trial. This we could see from
the extract of the visitors' book maintained by the authorities. There is hardly any
instance brought to our attention where a person who sought permission was denied
access to the Court. The High Court has also considered this aspect carefully. The High
Court has observed that the "trial Judge has given access to the place of trial for all
members of the Public who may be minded to attend the same save for certain
reasonable restriction imposed in public interest." This statement has not been shown to
be incorrect. The fact also remains that the accused were represented by leading
members of the Bar. Some of the close relatives of the accused were allowed to be
present at the trial. All press representatives and news agencies whoever sought
permission have been allowed to cover the day to day Court proceedings. The Trial
Judge in his order dated June 5,1985 has specifically stated this. There can, therefore,
be no doubt or dispute as to the adequacy of safeguards provided to constitute an open
trial. Indeed, the steps taken by learned trial Judge are more than adequate to ensure
fair trial as well as public trial.

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200. For the accused, it is argued that the people can assert their right of access to
criminal trials in the exercise of their fundamental right guaranteed under Article 19(1)
(a) of the Constitution and they need not be under the mercy of the Court. It is also
argued that there shall not be any discrimination in the matter of public access to
judicial proceedings and first come first served should be the principle no matter
whether one is a press person or an ordinary citizen. The contentions though attractive
need not be considered since no member of the public or press is before us making
grievance that his constitutional right of access to the trial has been denied in this case.
This Court has frequently emphasized that the decision of the Court should be confined
to the narrow points directly raised before it. There should not be any exposition of the
law at large and outside the range of facts of the case. There should not be even obiter
observations in regard to questions not directly involved in the case. These principles
are more relevant particularly when we are dealing with constitutional questions. I
should not transgress these limits. However, the decisions referred to us may be briefly
touched upon here.
201. In Nourish Shridhar Mirajkar v. State of Maharashtra (1963 (3) SCR 744), this
Court had an occasion to consider the validity of a judicial verdict of the High Court of
Bombay made under the inherent powers. There the learned Judge made an oral order
directing the Press not to publish the evidence of a witness given in the course of
proceedings. That order was challenged by a journalist and others before this Court on
the ground that their fundamental rights guaranteed under Article 19(1)(a) and (g) have
been violated. Repelling the contention, Gajendragadkar, CJ, speaking for the majority
view, said (at 760-61):
The argument that the impugned order affects the fundamental rights of the
petitioners under Article 19(1), is based on a complete misconception about the
true nature and character of judicial process and of judicial decisions. But it is
singularly inappropriate to assume that a judicial decision pronounced by a
Judge of competent jurisdiction in or in relation to a matter brought before him
for adjudication can effect the fundamental rights of the citizens under Article
19(1). What the judicial decision purports to do is to decide the controversy
between the parties brought before the Court and nothing more. If this basic
and essential aspect of the judicial process is borne in mind, it would be plain
that the judicial verdict pronounced by Court in or in relation to a matter
brought before it for its decisions cannot be said to affect the fundamental
rights of citizens under Article 19(1).
202. There is trilogy of decisions of the Supreme Court of United States dealing with
the constitutional right of the public access to criminal trials:
203. In Gannet Co. v. De Pasquale 443 U.S. 368 , the defendants were charged with
murder and requested closure of the hearing of their motion to suppress allegedly
involuntary confessions and physical evidence. The prosecution and the trial Judge
agreed and said that closure was necessary. The public and the press were denied
access to avoid adverse publicity. The closure was also to ensure that the defendants'
right to a fair trial was not jeopardized. The Supreme Court addressed to the question
whether the public has an independent constitutional right of access to a pretrial judicial
proceedings, even though the defendant, the prosecution, and the trial Judge had
agreed that closure was necessary. Explaining that the right to a public trial is personal
to the defendant, the Court held that the public and press do not have an independent
right of access to pretrial proceedings under the Sixth Amendment.

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204. Although the Court in Gannett held that no right of public access emanated from
the sixth Amendment it did not decide whether a constitutional right of public access is
guaranteed by the first amendment. This issue was discussed in Richmond Newspaper
Inc. v. Virginia 448 US 555 . This case involved the closure of the court-room during
the fourth attempt to try the accused for murder. The United States Supreme Court
considered whether the public and press have a constitutional right of access to criminal
trials under the first amendment. The Court held that the first and fourteenth
amendments guarantee the public and press the right to attend criminal trials. But the
Richmond Newspapers case still left the question as to whether the press and public
could be excluded from trial when it may be in the best interest of fairness to make
such an exclusion. That question was considered in the Globe Newspapers v. Superior
Court (1982) 73 L.Ed.248. There the trial Judge excluded the press and public from the
court room pursuant to a Massachusetts statute making closure mandatory in cases
involving minor victims of sex crimes. The Court considered the constitutionality of the
Massachusetts statute and held that the statute violated the first amendment because of
its mandatory nature. But it was held that i t would be open to the Court in any given
case to deny public access to criminal trials on the ground of state's interest. Brennan,
J., who delivered the opinion of the Court said (at 258-59):
We agree with appellee that the first interest safeguarding the physical and
psychological well-being of a minor is a compelling one. But as compelling as
that interest is, it does not justify a mandatory closure rule, for it is clear that
the circumstances of the particular case may determine on a case by case basis
whether closure is necessary to protect the welfare of a minor victim. Among
the factors to be weighed are the minor victim's age, psychological maturity
and understanding, the nature of the crime the desires of the victims, and the
interests of parents and relatives.
xx xx xx xx xx
...Such an approach ensures that the constitutional right of the press and public
to gain access to criminal trials will not be restricted except where necessary to
protect the State's interest.
205. It will be clear from these decisions that the mandatory exclusion of the press and
public to criminal trials in all cases violates the First Amendment to the United States
Constitution. But if such exclusion is made by the trial Judge in the best interest of
fairness to make that exclusion, it would not violate that constitutional rights.
206. It is interesting to note that the view taken by the American Supreme Court in the
last case, runs parallel to the principles laid down by this Court in Naresh Shridhar
Mirajkar case.
Re: Question (iv):
207. There remains, however, the last question formulated earlier in this judgment,
namely, whether the trial Court was justified in refusing to call for the statements of
witnesses recorded by the Thakkar Commission?
208. For a proper consideration of the question, it will be necessary to have a brief
outline of certain facts.
209. Soon after the assassination of Mrs. Indira Gandhi, the Government of India, by
Notification dated November 20, 1984, constituted a Commission under the Commission

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of Inquiry Act, 1952 (the "Act"). The Commission was presided over by Mr. Justice M.P.
Thakkar, the sitting Judge of this Court. The Commission was asked to make an enquiry
with respect to the matters:
(a) the sequence of events leading, and all the facts relating to, the
assassination of the late Prime Minister;
(b) whether the crime could have been averted and whether there were any
lapses of dereliction of duty in this regard on the part of any of the commission
of the crime and other individuals responsible for the security of the late Prime
Minister;
(c) the deficiencies, if any, in the security system and arrangements as
prescribed or as operated in practice which might have facilitated the
commission of the crime;
(d) the deficiencies, if any, in the procedures and measures as prescribed, or as
operated in practice in attending to any providing medical attention to the late
Prime Minister after the commission of the crime; and whether there was any
lapse or dereliction of duty in this regard on the part of the individuals
responsible for providing such medical attention;
(e) whether any person or persons or agencies were responsible for conceiving,
preparing and planning the assassination and whether there was any conspiracy
in this behalf, and if so, all its ramifications.
210. The Commission was also asked to make recommendations as to the corrective
remedies and measures that need to be taken for the future with respect to the matters
specified in clause (d) above.
211. On December 5, 1984, the Commission framed regulations under Section 8 of the
Act in regard to the procedure for enquiry. Regulation 8 framed thereon reads: "In view
of the sensitive nature of the enquiry, the proceedings will be in camera unless the
Commission directs otherwise." Accordingly, the Commission had its sittings in camera.
On November 19,1985, the Commission submitted an interim report to the Government
followed by the final report on February 27,1986.
212. In the normal course, the Government ought to have placed the report of the
Commission under Section 3(4) of the Act before the House of the People within six
months of the submission of the report. But the Government did not do that. The steps
were taken to amend the Commissions of Inquiry Act. On May 14,1986, the President of
India promulgated Ordinance No. 6 of 1986 called the Commissions of Inquiry
(Amendment) Ordinance 1986 by which Sub-sections (5)and(6)were introduced to
Section 3 as follows:
(5) The provisions of Sub-section (4) shall not apply if the appropriate
Government is satisfied that in the interests of the sovereignty and integrity of
India, the security of the State friendly relations with foreign State or in the
public interest, it is not expedient to lay before the House of the people or, as
the case may be, the Legislative Assembly of the State, the report, or any part
thereof, of the Commission on the Inquiry made by the Commission under Sub-
section (1) and issues a notification to that effect in the Official Gazette.
(6) Every notification issued under Sub-section(5) shall be laid before the

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 House of the people or, as the case may be, the Legislative Assembly of the
State, if it is sitting as soon as may be after the issue of the notification, and if
it is not sitting, within seven days of its reassembly and the appropriate
Government shall seek the approval of the House of the People or, as the case
may be, the Legislative Assembly of the State to the notification by a resolution
moved within a period of fifteen days beginning with the day on which the
notification is so laid before the House of the People or as the case may be, the
Legislative Assembly of the State makes any modification in the notification or
directs that the notification should cease to have effect, the notification shall
thereafter have effect, as the case may be.
2 1 3 . On May 15, 1986, the Central Government issued a notification under Sub-
section(5) of Section 3 stating:
The Central Government, being satisfied that it is not expedient in the interest
of the security of the State and in the public interest to lay before the House of
the People the report submitted to the Government on the 19th November 1985,
and the 27th February, 1986, by Justice M.P. Thakkar, a sitting Judge of the
Supreme Court of India appointed under the notification of the Government of
India in the Ministry of Home affairs No. S.O. 867(B) dated the 20th November,
1984, hereby notifies that the said reports shall not be laid before the House of
the People.
2 1 4 . On August 20, 1986, Ordinance No. (6) was replaced by the Commission of
Inquiry (Amendment) Act, 1986 (Act 36 of 1986) with retrospective effect. The said
notification dated May 15, 1986 was also got approved by the House of the People as
required under Sub-section (6) of Section 3.
215. We may now revert to the steps taken by the accused before the trial court. After
the prosecution examined some of the witnesses, accused No. 1 moved the Court with
an application dated August 5,1985 praying for summoning true copies of statements of
all persons recorded by the Thakkar Commission and who happened to be the
prosecution witnesses in the case. It was stated in the application that the statements
should be summoned for the purpose of Section 145 of the Evidence Act. The trial court
rejected that application following the decision of this Court in Ramakrishna Dalmia v.
Justice Tandolkar MANU/SC/0024/1958 : [1959]1SCR279 . The trial court said that the
statements recorded by the Commission are inadmissible in evidence in any subsequent
proceedings and cannot therefore be used for the purpose of contradicting the same
witnesses under Section 145 of the Evidence Act.
216. Before the High Court, the accused made two applications under Section 391 of
the Criminal procedure Code. On July 16, 1986 accused Nos. 2 and 3 made an
application for additional evidence. Accused No. 1 also made a similar application dated
July 17, 1986. They wanted the depositions recorded and the documentary evidence
received by the Thakkar Commission as additional evidence in the case. They also
wanted the High Court to summon the two reports of the Thakkar Commission.
217. The High Court rejected both the applications in the course of the judgment which
is now under appeal. The High Court has stated that it is not proper to compel
production of the proceedings or the report of the Commission in view of the privilege
of non-disclosure provided by the Act of Parliament. The High Court also depended
upon the decision of this Court in Dalmia's case. The decision therein was held to be an
authoritative pronouncement on the scope of Section 6 of the Act and as to the

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utilisation of statement made by any person before the Commission. The High Court
held that the evidence before the Commission is wholly inadmissible in any other Civil
or Criminal proceedings except for prosecuting the person for perjury.
218. The principal submission before us is that the High Court has misconstrued the
scope of Section 6 of the Act and misunderstood the observations in Dalmia's case. It is
also contended that the observation in Dalmia's case. as a binding precedent since this
Court was not called upon therein to examine the true scope of Section 6.
219. It is true that the scope of section as such did not come up for consideration in
Dalmia's case. Das, CJ., while examining the challenge to the validity of the Act and a
notification issued thereunder made some observations as to matters of principle (294-
295):
The whole purpose of setting up of a Commission of Inquiry consisting of
experts will be frustrated and the elaborate process of inquiry will be deprived
of its utility if the opinion and the advice of the expert body as to the measures
the situation disclosed calls for cannot be placed before the Government for
consideration notwithstanding that doing so cannot be to the prejudice of
anybody because it has no force of its own. In our view, the recommendations
of a Commission of Inquiry are of great importance to the Government in order
to enable it to make up its mind as to what legislative or administrative
measures should be adopted to eradicate the evil found or to implement the
beneficial objects it has in view. From this point of view, there can be no
objection even to the Commission of Inquiry recommending the imposition of
some form of punishment which will, in its opinion, be sufficiently deterrent to
delinquents in future. But seeing that the Commission of Inquiry has no judicial
powers and its report will purely be recommendatory and not effective proprio
vigore and the statement made by any person before the Commission of Inquiry
is under Section 6 of the Act wholly inadmissible in evidence in any future
proceedings, civil or criminal.
(Emphasis supplied)
220. Since the argument in the above case did not traverse the scope of Section 6 of
the Act, it is now necessary to call attention to the same at length. Before examining the
matter, it may not be inappropriate to state that the accused in criminal trials should be
given equal opportunity to lay evidence fully, freely and fairly before the Court. The
Government which prosecutes an accused will lay bare the evidence in its possession. If
the accused asks for summoning any specific document or thing for preparing his case,
it should normally be allowed by the Court if there is no legal bar. But "the demand", as
Brennan, J., of the Supreme Court of the United States, observed, "must be for
production of... specific documents and should not propose any broad or blind fishing
expedition." (Clinton E. Jencks v. United States,353 U.S.657 : 1LEd 1103). Ameer Ali, J.
In Nizam of Hyderabad v. A.M. Jacob ILR 19 Cal. 52 made similar observations:
...he cannot call for anything and everything from anybody and everybody. The
thing called for must have some relation to, or connection with : the subject-
matter of the investigation or enquiry, or throw some light on the proceedings,
or supply some link in the chain of evidence.
221. These principles are broadly incorporated for the guidance of Courts under Section
91 and 233 of the Code.

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222. Let us turn to consider in detail the language of the Critical section. Section 6
provides:
No statement made by a 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 by such statement....
XX XX XX XX XX XX XX
223. Dissecting the section, it will be clear that the statement made by a person before
the Commission, in the first place shall not be the basis to proceed against him.
Secondly, it shall not be used against him' in any subsequent civil or criminal
proceedings except for the purpose set out in the section itself. The single exception
provided thereunder is a prosecution for giving false evidence by such statement.
224. The term "used against" has given rise to controversy. The Bombay High Court in
(i) Sohan Lal v. State MANU/MH/0080/1965 : AIR1965Bom1 and (ii) State
ofMaharashtrav. Ibrahim Mohd. 1978 Cri L J 1157 has regarded the observations in
Dabnia's case as an obiter. It was held:
Whether a particular statement made by a witness before the Commission is
used "against him" will depend on the prejudice or detriment caused or likely to
cause to the person in civil or criminal proceedings or otherwise. It must,
therefore, necessarily depend on the facts and circumstances relating to the use
or intended use. Whether any particular prejudice or detriment can be said to
result from the use of the statements will also depend on facts. Mere cross-
examination under Section 145 can at the most expose his statement. That does
not render the use of the statement "against him" in law because law requires
him to tell the truth, the whole truth and nothing but the truth before the
Commission also and implies that he will be prosecuted for perjury if he tells
lies." [Maharashtra v. Ibrahim Mohd. 1978 CrI. LJ 1157.
225. This line of reasoning also found favour with the Assam High Court in State of
Assam v. SuprbhatBhadra MANU/GH/0054/1982. But Madhya Pradesh High Court in
Puhupram and Ors. v. State of M.P. MANU/MP/0144/1968 : 1968 MP L J 629 has taken
a contrary view. That High Court said that the language of Section 6 is plain enough to
show that the statement made by a person before the Commission of Inquiry cannot be
used against him for the purpose of cross-examination.
226. It is urged that even if the words "used against" means preventing the use of the
statement for the purpose of contradiction as required under Section 145 of the
Evidence Act, there are other provisions by which the previous statement could be
looked into for productive use without confronting the same to the witness. Reference is
made to the first part of Section 145, Sub-section (1) and(2) of Section 146 as well as
Sections 157 and 159 of the Evidence Act. It is also said that the term "used against" in
Section 6 was not intended to be an absolute bar for making use of such statement in
subsequent proceedings. The learned Additional Solicitor General, on the other hand,
states that Section 6 was intended to be a complete protection to persons against the
use or utility of their statements in any proceedings except in case of prosecution for
perjury. Such protection is necessary for persons to come and depose before the
Commission without any hesitation. Any dilution of that protection, it is said, would
defeat the purpose of the Act itself.
227. Before I come to consider the arguments put forward by each side, I venture to

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refer to some general observations by way of approach to the questions of construction
of statutes. In the past, the Judges and lawyers spoke of a 'golden rule' by which
statutes were to be interpreted according to grammatical and ordinary sense of the
word. They took the grammatical or literal meaning unmindful of the consequences.
Even if such a meaning gave rise to unjust results which legislature never intended, the
grammatical meaning alone was kept to prevail. They said that it would be for the
legislature to amend the Act and not for the Court to intervene by its innovation.
228. During the last several years, the 'golden rule' has been given a go bye. We now
look for the 'intention' of the legislature or the 'purpose' of no statute. First, we examine
the words of the statute. If the words are precise and cover the situation in hand, we do
not go further. We expound those words in the natural and ordinary sense of the words.
But, if the words are ambiguous, uncertain or any doubt arises as to the terms
employed, we deem it as our paramount duty to put upon the language of the
legislature rational meaning. We then examine every word, every section and every
provision. We examine the Act as a whole. We examine the necessity which gave rise to
the Act. We look at the mischiefs which the legislature intended to redress. We look at
the whole situation and not just one-to-one relation. We will not consider any provision
but of the framework of the statute. We will not view the provisions as abstract
principles separated from the motive force behind. We will consider the provisions in
the circumstances to which they owe their origin. We will consider the provisions to
ensure coherence and consistency within the law as a whole and to avoid undesirable
consequences.
2 2 9 . Let me here add a word of caution. This adventure, no doubt, enlarges our
discretion as to interpretation. But it does not imply power to us to substitute our own
notions of legislative intention. It implies only a power of choice where differing
constructions are possible and different meanings are available.
230. For this purpose, we call in external and internal aids:
External aids are: the Statement of Objects and Reasons when the Bill was
presented to Parliament, the reports of the Committee, if any, preceded the Bill,
legislative history, other statutes in pari materia and legislation in other States
which pertain to the same subject matter, persons, things or relations.
Internal aids are: Preamble, Scheme, enacting parts of the statutes, rules of
languages and other provisions in the statutes.
231. The Act may now be analysed. The Act is a short one consisting of 12 Sections.
Section 3 provides power to he appropriate Government to appoint a Commission of
Inquiry for the purposes of making an inquiry into any definite matter of public
importance. Section in 4 confers upon a Commission of Inquiry certain powers of a Civil
Court (for example, summoning and enforcing the attendance of witnesses and
examining them on oath, etc.) Section 5 empowers the appropriate Government to
confer some additional powers on a Commission of Inquiry. Section 5(a) authorizes the
Commission to utilise the service of any officer or investigating agency for the purpose
of conducting any investigation pertaining to inquiry entrusted to the Commission.
Section 6 confers upon persons giving evidence before the Commission protection from
prosecution except for perjury. The other section are not important for our purpose
except Section 8. Section 8 provides procedure to be followed by the Commission. The
Commission is given power to regulate its own procedure and also to decide whether to
sit in public or in private.

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232. The Statement of Objects and Reasons of the original Act reads:
It is felt that there should be a general law authorising Government to appoint
an inquiring authority on any matter of public importance, whenever considered
necessary, or when a demand to that effect is made by the legislature and that
such law should enable to inquiring authority to exercise certain specific powers
including the powers to summon witnesses, to take evidence on oath, and to
compel persons to furnish information. The bill is designed to achieve this
object.
233. It will be clear from these provisions that the Act was intended to cover matters of
public importance. In matters of public importance it may be necessary for the
Government to fix the responsibility on individuals or to kill harmful rumours. The
ordinary law of the land may not fit in such cases apart from it is time consuming.
234. The Commission under our Act is given the power to regulate its own procedure
and also to decide whether to sit in camera or in public. A Commission appointed under
the Act 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. The procedure of
the Commission is inquisitorial rather than accusatorial. The Commission more often
may have to give assurance to persons giving evidence before it that their statements
will not be used in any subsequent proceedings except for perjury. Without such an
assurance, the persons may not come forward to give statements. If persons have got
lurking fear that their statements given before the Commission are likely to be used
against them or utilised for productive use on them in any other proceeding, they may
be reluctant to expose themselves before the Commission. Then the Commission would
not be able to perform its task. The Commission would not be able to reach the
suggests of truth from the obscure horizon. The purpose for which the Commission is
constituted may be defeated.
235. The Court should avoid such construction to Section 6 which may stultify the
purpose of the Act. Section 6 must on the other hand, receive liberal construction so
that the person deposing before the Commission may get complete immunity except in
a case of prosecution for perjury. That is possible if the word "against" used in Section
6 is properly understood. The meaning given in Black's Law Dictionary supports such
construction (at 57):
Against - Adverse to, contrary....Sometimes meaning "Upon", which is almost,
synonymous with word "on"....
236. Apart from that, it may also be noted that Section 6 contains only one exception.
That is prosecution for giving false evidence by such statement. When the Legislature
has expressly provided a singular exception to the provisions, it has to be normally
understood that other exceptions are ruled out.
2 3 7 . The view that I have taken gets confirmation from the report of the Royal
commission on Tribunals of Inquiry (1966). Before referring to the report, it will be
useful to have before us, the relevant provisions of the English statutes which are not
materially dissimilar to our Act. There are two English statutes which may be looked
into: (i) The Special Commission Act, 1888; and (ii) The Tribunals of Inquiry
(Evidence) Act, 1921. Section 9 of the Special Commission Act, 1888 provides:
9...A witness examined under this Act shall not be excused from answering any
question put to him on the ground of any privilege or on the ground that the

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 answer thereto may criminate or tend to criminate himself. Provided that no
evidence taken under this Act shall be admissible against any person in any civil
or criminal proceeding except in the case of a witness accused of having given
false evidence in any inquiry under this Act....
(Emphasis supplied)
238. Section 1(3) of the Tribunals of Inquiry (Evidence) Act, 1921, provides:
A witness before any such tribunal shall be entitled to the same immunities and
privileges as if he were a witness before the High Court or the Court of Session.
239. Section 9 of the Special Commission Act, 1888 protects the witness in every
respect except in a prosecution for giving false evidence by such statement. It provides
that the evidence given by him shall be inadmissible in any civil or criminal
proceedings. Section 1(3) of the Tribunals of Inquiry (Evidence) Act, 1921 provides
only a limited or partial immunity to a witness. It is similar to the immunity afforded to
a witness before the High Court or the Court of Session.
240. In 1966, the Royal Commission on Tribunals of Inquiry was constituted under the
Chairmanship of the Rt. Hon. Lord Justice Salmon. The Commission was appointed to
review the working of the Tribunals of Inquiry (Evidence) Act, 1921, and to consider
whether it should be retained or replaced by some other provision. The Commission
was also authorised to suggest any changes in the Act as are necessary or desirable;
and to make recommendations. The Royal Commission in its report at para 63
recommended:
(vii): Further Immunity:
"Section 1(3) of the Act of 1921 provides that a witness before any
Tribunal shall be entitled to the same immunities and privileges as if he
were a witness before the High Court or the Court of Session, This
means that he cannot be sued for anything he says in evidence e.g. if
he says "A is a liar. His evidence is untrue." A cannot sue him for
defamation. It does not mean however that his answer as a witness
cannot be used in evidence against him in any subsequent civil or
criminal proceedings. We consider the witness's immunity should be
extended so that neither his evidence before the Tribunal, nor his
statement to the Treasury Solicitor, nor any documents he is required
to produce to the Tribunal, shall be used against him in any subsequent
civil or criminal proceedings except in criminal proceedings in which he
is charged with having given false evidence before the Tribunal or
conspired with or procured others to do so. This extension of the
witness's immunity would bring the law in this country into line in this
respect with similar provision in the legislation of Canada, Australia
and India and indeed with Section 9 of the Special Commission Act,
1888. It would also, in our view, be of considerable assistance in
obtaining relevant evidence, for persons may be chary of coming
forward for fear of exposing themselves to the risk of prosecution or an
action in the civil courts. Moreover, the suggested extension of the
immunity would make it difficult for a witness to refuse to answer a
question on the ground that his answer might tend to incriminate him.
Thus not only would the witness be afforded a further measure of
protection but the Tribunal would also be helped in arriving at the

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 truth.
241. The Royal Commission appears to have thoroughly examined the provisions as to
immunity to witnesses in the legislations of Canada, Australia and India and Section 9
of the special Commission Act, 1888. The Commission has stated that the immunity
provided to witnesses under Section 1(3) of the Act, 1921 is insufficient for the purpose
of advancing the object of the Act. It should be extended so that the statement of a
witness before the Tribunal shall not be used against him in any subsequent civil or
criminal proceedings except in a prosecution for perjury by giving false evidence before
the Tribunal. The extension of such immunity, according to the Royal Commission,
would bring Section 1(B) of the Act, 1921 into line with the similar provisions in the
legislations of Canada, Australia and India. The legislation in India is the Commission of
Inquiry Act, 1952 with which we are concerned. It is apparent that the Royal
Commission was of opinion that Section 6 of our Act provides complete protection to
witnesses in terms of Section 9 of the Special Commission Act, 1888. It means that the
statement given before a Commission shall not be admissible against the person in any
subsequent civil or criminal proceeding save for perjury.
242. There is, therefore, much to be said for the observation made in Dalmia's case
and indeed that is the proper construction to be attributed to the language of Section 6
of the Act. I respectfully affirm and re-emphasise that view.
243. It is needless to state that the said decisions of the High Courts of Bombay and
Assam are incorrect and they stand overruled.
244. Having reached this conclusion, it is strictly unnecessary to fall back on the other
contention raised by counsel for the appellants.
245. Let us now move on to the merits of the case against each of the accused. But,
before proceeding to consideration of the merits, it will be appropriate to have regard to
principles and precedents followed by this Court while dealing with an appeal under
Article 136 of the Constitution. There is a string of decisions laying down those
principles right from 1950. In Pritam Singh v. The State MANU/SC/0015/1950 :
1950CriLJ1270 , Fazal Ali, J., said (at 170):
It would be opposed to all principles and precedents if we were to constitute
ourselves into a third Court of fact and, after reweighing the evidence, come to
a conclusion different from that arrived at by the trial Judge and the High Court.
246. In HemRaj State of Ajmer MANU/SC/0054/1954 : 1954CriL J1313 , M.C. Mahajan,
CJ. had this to say (at 1134):
Unless it is shown that exceptional and special circumstances exist that
substantial and grave injustice has been done and the casein question presents
features of sufficient gravity to warrant a review of the decision appealed
against, this Court does not exercise its overriding powers under Article 136(1)
of the Constitution and the circumstance that because the appeal has been
admitted by special leave does not entitled the appellant to open out the whole
case and contest all the findings of fact and raise every point which could be
raised in the High Court. Even at the final hearing only those points can be
urged which are fit to be urged at the preliminary stage when the leave to
appeal is asked for.
247. More recently, in Bhoginohai Hirjibhai v. State of Gujarat MANU/SC/0090/1983 :

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1983CriLJ1096 Thakkar, J., recounted (at 755):
A concurrent finding of fact cannot be reopened in an appeal, unless it is
established: first that the finding is based on no evidence or; second, that the
finding is perverse, it being such as no reasonable person could have arrived at
even if the evidence was taken at its face value or thirdly, the finding is based
and built on inadmissible evidence, which evidence if excluded from vision,
would negate the prosecution case or substantially discredit or impair it or;
fourthly, some vital piece of evidence which would tilt the balance in favour of
the convict has been overlooked, disregarded or wrongly discarded.
248. Bearing in mind these principles, let me take up the case of Balbir Singh (A-2)
first for consideration:
Balbir Singh:
249. He was an officer of the Delhi Police in the cadre of Sub-Inspectors. He was
posted on duty at the PM's residence. He was not on duty in the morning of October 31,
1984. His duty was to commence in the evening on that day at the in-gate of Akbar
Road. When reported for duty, in the usual course, he was asked to go to the security
police lines. At about 3 a.m. on November 1,1984, he was awakened from his sleep and
his house was searched by SI, Mahipal Singh (PW 50), Constable Hari Chand (PW 17)
and Inspector Shamshir Singh. Nothing except a printed book on Sant Bhindrawale
(Ex.PW 17/A) was recovered. At about 4 a.m., he was taken to Yamuna Velodrome. He
was kept there till late in the evening when he was released from, what Kochar (Pw 73)
says, 'de facto custody'. On December 3, 1984, he was said to have been arrested at
Najafgarh bus-stand. On December 4, 1984, he was produced before the Magistrate,
who remanded him to police custody. Thereafter, he expressed his desire to make a
confession. But when produced before the Magistrate, he refused to make a statement -
confessional or otherwise. He was tried along with the other accused for having entered
into a criminal conspiracy to commit the murder of the Prime Minister, Mrs. Indira
Gandhi. He was convicted under Section 302 read with Section 120-B IPC and
sentenced to death.
250. The charge-sheet contains the following accusations against Balbir Singh:
That Balbir Singh, like other accused, had expressed his resentment openly, holding
Smt. Indira Gandhi responsible for the "Blue Star Operation". He was planning to
commit the murder of Smt. Indira Gandhi. He discussed his plans with Beant Singh
(deceased), who had similar plans to commit the murder. He also shared his intention
and prompted accused Sat-want Singh to commit the murder of Smt. Indira Gandhi and
finally discussed the matter with him on October 30,1984.
251. In the first week of September 1984, a falcon (Baaj) happened to sit on a tree
near the main Reception of the Prime Minister's house at about 1.30 pm. Balbir Singh
spotted the falcon. He called Beant Singh there. Both of them agreed that it had brought
a message of the Tenth Guru of the sikhs and they should do something by way of
revenge of the "Blue Star Operation", Thereafter, they performed 'Ardas' then and there.
252. These accusations are sought to be established by the testimony of SI, MadanLal
Sharma (PW 13), Constable Satish Chander Singh (PW 52), SI, Amarjit Singh (PW 44)
and the confession of Satwant Singh (Ex.PW 11/C). The prosecution also strongly rely
upon a document described as "memorandum of events" (Ex.PW 26/B) said to have
been recovered upon the arrest of Balbir Singh on December 3,1984. His leave

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applications (Ex. PW 26/E-1 to E-5) and his post crime conduct as to absconding are
also relied upon.
253. The case of Balbir Singh is that the document Ex.PW 26/B was not recovered from
his possession as made out by the prosecution. His arrest at Najafgarh bus-stand was a
make believe arrangement. He was not arrested there and indeed he could not have
been arrested, since he was all along under police custody right from the day when he
was taken to Yamuna Velodrome on November 1,1984. He was not absconding and the
question of absconding did not arise when he was not released at all. No question was
put to him under Section 313 examination that he had absconded. It is argued that the
conclusions of the High Court on all these matters are apparently unsustainable.
2 5 4 . Before examining these contentions, it will be better to dispose of the point
common to this accused and Kehar Singh (A-3) relating to the validity of sentence of
death awarded to them.
255. It is urged that there was no charge against the accused under Section 109 of IPC
and without such a charge, they are liable to be sentenced only for the offence of
abetment and not for the murder. Reliance is placed on the provisions of Section 120-B
IPC which provides, inter alia, that a party to a criminal conspiracy shall be punished in
the same manner as if he had abetted such offence. The contention, in our opinion, is
really ill-founded. It overlooks the vital difference between the two crimes; (i)abetment
in any conspiracy, (ii) criminal conspiracy. The former is defined under the second
clause of Section 107 and (2) xx the latter is under Section 120-A. Section 107, so far
as it is relevant, provides:
107. A person abets the doing of a thing,
Firstly....
Secondly - Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes place
in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly...
Section 109 provides:
Whoever abets any offence, shall, if the act abetted is committed in
consequence of the abetment and no express provision is made by this Code for
the punishment of such abetment, be punished with the punishment provided
for the offence.
256. Criminal conspiracy is defined under Section 120-A:
120-A. When two or more person agree to do, or cause to be done -
(1) an illegal act, or
(2) an act, which is not illegal by illegal means, such agreement is
designated a criminal conspiracy;
xx XX XX XX XX
Punishment for criminal conspiracy is provided under Section 120-B:

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 120-B(1) Whoever is a party to a criminal conspiracy to commit an offence
punishable with death, imprisonment for life or rigorous imprisonment for a
term of two years or upwards, shall, where no express provision is made in this
Code for the punishment of such conspiracy, be punished in the same manner
as if he had abetted such offence.
xx XX XX
257. The concept of criminal conspiracy will be dealt with in detail a little later. For the
present, it may be sufficient to state that the gist of the offence of criminal conspiracy
created under Section 120-A is a bare agreement to commit an offence. It has been
made punishable under Section 120-B. The offence of abetment created under the
second clause of Section 107 requires that there must be something more than a mere
conspiracy. There must be some act or illegal omission in pursuance of that conspiracy.
That would be evident by the wordings of Section 107 (Secondly): "engages in any
conspiracy... for the doing of that thing, if an act or illegal omission takes place in
pursuance of that conspiracy...." The punishments for these two categories of crimes
are also quite different. Section 109 IPC is concerned only with the punishment of
abetments for which no express provision is made under the Indian Penal Code. A
charge under Section 109 should, therefore, be along with some other substantive
offence committed in consequence of abetment. The offence of criminal conspiracy is,
on the other hand, an independent offence. It is made punishable under Section 120-B
for which a charge under Section 109 IPC is unnecessary and indeed, inappropriate. The
following observation of Das, X, in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar 1962
(Su) 2 SCR 297 also supports my view:
Put very briefly, the distinction between the offence of abetment under the
second clause of Section 107 and that of criminal conspiracy under Section
120-A is this. In the former offence a mere combination of persons or
agreement between them is no enough. An act or illegal omission must take
place in pursuance of the conspiracy and in order to the doing of the thing
conspired for; in the latter offence the mere agreement is enough, if the
agreement is to commit an offence.
So far as abetment by conspiracy is concerned, the abettor will be liable to
punishment under varying circumstances detailed in Sections 108 to 117. It is
unnecessary to detail those circumstances for the present case. For the offence
of criminal conspiracy it is punishable under Section 120-B.
258. This takes me back to the other contentions specifically urged on behalf of Balbir
Singh. Of the evidence relied upon by the prosecution, the document Ex.PW 26/B is said
to be the most important. The High Court has accepted it "as revealing a coherent story
of participation of the accused in the conspiracy." The High Court also said: "the
document shows beyond doubt that Balbir Singh was all along in the picture and
associated with Beant Singh and Satwant Singh". Before us, the criticisms against this
document are various and varied. It may be stated and indeed cannot be disputed that
the genuineness of the document is inextricably connected with the arrest and search of
the accused at Najafgarh Bus Stand. The document was recovered from the accused
upon arrest and search made under Section 51 of the Code. If the arrest cannot carry
conviction then the recovery automatically falls to the ground. Not merely that, even the
allegation that the accused had absconded vanishes to thin air.
259. The police at the earliest moment suspected Balbir Singh as a person involved in

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the conspiracy to murder the Prime Minister. After midnight, they arrived at his
residence. They knocked on the door and made him to get up from his bed. They
searched his house and found nothing incriminating against him. They took him to
Yamuna Velodrome doubtless upon arrest. The plain fact is that Balbir Singh was kept
under custody throughout the day. At 6 PM, he was seen at the Yamuna Velodrome by
Rameshwara Singh (PW 51). The case of the prosecution however, is that Balbir Singh
was released thereafter and he was absconding till he was arrested on December 3,1984
at Najafgarh Bus Station. The accused challenges this version. The Courts do not
interfere in the discretion of the police in matters of arrest, search and release of
persons suspected in criminal cases. But the courts do insist that it should be done
according to law. If the prosecution say that that the accused was released from custody
and the accused denies it, it will be for the prosecution to place material on record in
support of the version. Admittedly, there is no record indicating the release of Balbir
Singh from Yamuna Velodrome. The explanation given is that Yamuna Velodrome being
not a Police Station, registers were not maintained to account for the incoming and
outgoing suspects. It is hardly an explanation where life and death questions are
involved.
260. Again, the question of absconding by the accused remains unanswered. First,
there is no material to lend credence to this serious allegation. Nobody has been asked
to search him. No police party has been sent to track him. No procedure contemplated
under law has been taken. Second, there is no evidence from which place the accused
came and landed at Najafgarh Bus Stand. Kochar (PW 73) has deposed that he had
secret information at 2 PM on December 3, 1984 that the accused was likely to visit
Najafgarh Bus Stand. He went along with Sant Ram (PW 35), Sub-Inspector of Crime
Bench. There they saw the accused at the Bus Stand. Before he was arrested, Kochar
personally interrogated him at the electricity office near the Najafgarh Bus Stand. The
interrogation went on for more than one hour. Yet, Kochar could not locate the place
from where the accused came to Najafgarh Bus Stand. Upon arrest, it is said that the
police have recovered certain articles including Ex.PW26/B under the seizure
memo(Ex.Pw35/A).But there is no independent witness for the seizure memo. Third, no
question as to absconding was put to the accused in the examination under Section 313
of the Code. What was put to him under question No. 52 was that he had remained
absent from duty from November 4,1984 till December 3,1984. That is not the same
thing to ask that the accused had absconded during that period. For that question, the
accused replied that he was under police detention from November 1,1984 till December
3,1984 and there was no question of his attending the duty during that period. He has
also stated that he was formally arrested on December 3, 1984 and till then he was
under Police detention.
2 6 1 . Realising the weakness in this part of the case, learned Additional Solicitor
General relied upon the averments in the application moved by the police for remanding
the accused to police custody. It was stated in the remand application dated December
4, 1984 that Balbir Singh had absconded and was not available for interrogation. It was
also stated therein that Balbir Singh was arrested at Najafgarh Bus stand on December
3, 1984. Shri S.L. Khanna, Additional C.M.M., remanded the accused to police custody
till December 6. The order of remand was signed by the accused. It is argued that the
accused being a police officer did not object to the allegations made against him in the
remand application. I do not think that this contention requires serious consideration.
The averments in the remand application are only self-serving. The silence of the
accused cannot be construed as his admission of those allegations.
262. There is yet another feature to which I should draw attention. The prosecution

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want to establish the recovery of Ex.PW 26/B from the accused by other
contemporaneous document. Reference in this context is made to theMalkana Register
of the Tughlak Road Police Station. Entry 986 in the Malkana Register, according to the
learned Additional Solicitor General, contains verbatim copy of the seizure memo
(Ex.Pw 35/A)and it is indicative of the fact that Ex. Pw 26/B was recovered from the
accused upon his arrest and search. Here again there is some difficulty. There is an
endorsement in the Malkana Register stating that the DTC ticket which the accused
carried and the paper containing the dates in English (Ex.Pw 26/B) were not deposited.
Malkana Register, therefore, is of little assistance to the prosecution.
263. In view of these infirmities, the arrest of the accused at Najafgarh Bus Stand does
not inspire confidence. This by itself is sufficient to discard the document Ex.PW 26/B.
Let me also examine the contents of the document which has been highlighted by the
High Court. The document can be taken to be in the handwriting of Balbir Singh to
avoid reference to unnecessary evidence. But that in my opinion, does not advance the
case of prosecution. The document is a sheet of paper in which we find the following
entries:
June 1984
- Army operation
- felt like killing
- Put on duty outside No. 1 S.J. Road
again at Dalip Singh
No. 1 SJ. Rd. - Proceeded on leave for 30 days
July 1984- Dalip & Varinder Singh visited my house,
- Dalip took me to Gurbaksh's house where Santa Singh also met.
- Dalip Singh & Gurbaksh visited my house Mavalankar Hall
- Went to Ghaziabad
- I visited Gurbaksh Singh's house - for Hemkunt
- I visited Gurbaksh Singh's house -"
- Back from leave August 1984
- Met Amarjit Singh & Beant Singh
- Dalip Singh Virender Singh etc. met at Bangla Sahib
- Mavalankar Hall/Gurupurab at Bangla Sahib 3rd Week Harpal Singh/Virender
- Beant Singh/Eagle meeting at
- Beant Singh decision to start constructive work September 1984
- Visited Gurbaksh Singh's house - Dalip & a boy Narinder Singh/ Virender

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 26 - 1000 Visited Gurbaksh's house & learned about the boy
- Leave for 4/5 days October 1984 - Narinder Singh
- Leave for 4/5 days 22nd - Beant Singh
leave for 4 days - Dalip Singh & Mohinder Singh visited
28 -
30 - Satwant
31 -
264. If this document is an incriminating piece of evidence, as the High Court has
observed, it is rather baffling why the accused, who was suspected to be a conspirator
to murder the Prime Minister of the country, should carry the document wherever he
goes and that too at a place where there were reprisal killings. The accused is not a
rustic person. He is a Sub-Inspector of Police with several years of service to his credit.
He must have anticipated the danger investigated so many crimes. He must have
anticipated the danger of carrying incriminating document when he was already
suspected to be a party to the deadly conspiracy. Unable to compromise myself with
any reason, I sought the assistance of learned Additional Solicitor General. He too could
not give any explanation. Indeed, nobody could offer even a plausible explanation for
this unusual conduct attributed to the accused. To my mind, to say that the absconding
accused - Sub Inspector was found at a public place in the national capital with an
incriminating document which may take him to gallows is to insult the understanding, if
not the intelligence, of police force of this country.
265. That is one aspect. The other aspect relates to the assessment of inherent value of
the document. A bare reading of the document, as rightly urged for the accused, shows
that this is a document composed at one time with the same ink and same writing
instrument. The corrections, the fixing of months and dates with the nature of entries
therein apparently indicate that the document was not kept as a contemporaneous
record of events relating to Balbir Singh. The fact that it was not in the possession of
the accused when his house was searched in the early hours of November 1,1984 also
confirms this conclusion.
266. In the document, there is no reference to killing of the Prime Minister. In fact,
except for a "felt like killing" in early June as an immediate reaction to the "Blue Star
Operation", even the manifestation of this feeling does not exist ' anywhere in
subsequent part of the document. The document refer to bare meetings, visits of
persons, or visiting somebody's house. It is, however, not possible to find out to whom
the document was intended to be used.
267. In the document, Beant Singh is referred to at four places. At one place, there is a
reference to Beant Singh wit eagle (not falcon). The cross mark of X closely followed by
A long arrow mark in the document indicates the indecision of the author or somebody
is straining his memory. There is no reference to a joint 'Ardas' or a message for
revenge associated with the appearance of eagle. The entry does not suggest that the
author had anything to do with the eagle. It is something between Beant Singh alone
and the eagle. It is significant that there is no reference to Beant Singh and his plans to
murder the Prime Minister. There is no reference to bombs or grenades associated with
the plans to eliminate the Prime Minister before the 15th August, 1984. There is no

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reference to any commission of any offence. There is no reference about Beant Singh
conspiring with Balbir Singh. There is no reference to Kehar Singh at all. If Balbir Singh
was a party to the conspiracy with Beant Singh, the date on which Beant Singh had
placed the murder of Mrs. Gandhi, that is, 25 October, 1984 as written in Ex. P.39 ought
to have been noted in Ex.PW 26/ B. We do not find any reference to that date. There is
a cryptic reference to Satwant Singh against 30th October and it must be with reference
to the evidence of Constable Satish Chander Singh (Pw 52) whose evidence no Court of
law could believe. PW 52 was a Sentry in the Prime Minister's security. According to
him, Balbir Singh was on duty on October 30, 1984 at a distance of about 5-7 steps
from his point of duty. He states that Satwant Singh came to meet Balbir Singh at 8 PM
on that day. He further states that they talked something in Punjabi which he could not
follow, as he did not know Punjabi. The only one entry which makes a reference to
killing is the second entry. It refers to "felt like killing". But one does not know who
"felt like killing" and killing whom? It may be somebody's reaction to the "Blue Star
Operation". If the document is read as a whole, it does not reveal anything
incriminating against Balbir Singh.
268. Before considering the other matters against Balbir Singh, it will be useful to
consider the concept of criminal conspiracy under Section 120-A and 120-B of IPC.
These provisions have brought the Law of Conspiracy in India in line with the English
law by making the overt-act unessential when the conspiracy is to commit any
punishable offence. The English Law on this matter is well-settled. The following
passage from Russel on Crime (12 Ed. Vol. I, 202) may usefully noted:
The gist of the offence of conspiracy then lies, not in doing the act, or effecting
the purpose for which the conspiracy is formed, nor in attempting to do them,
nor in inciting others to do them, but in the forming of the scheme or
agreement between the parties. Agreement is essential. Mere knowledge, or
even discussion, of the plan is not, per se, enough.
269. Glanville Williams in the "Criminal Law" (Second Ed.382) explains the proposition
with an illustration:
The question arose in an Iowa case, but it was discussed in terms of conspiracy
rather than of accessoryship. D, who had a grievance against P, told E that if he
would whip P someone would pay his fine. E replied that he did not want
anyone to pay his fine, that he had a grievance of his own against P and that he
would whip him at the first opportunity. E whipped P.D. was acquitted of
conspiracy because there was no agreement for "concert of action?", no
agreement to "co-operate".
270. Coleridge, J., while summing up the case to Jury in Regina v. Murphy 173 E R 508
pertinently states:
I am bound to tell you, that although the common design is the root of the
charge, it is not necessary to prove that these two parties came together and
actually agreed in terms to have this common design and to pursue it by
common means, and so to carry it into execution. This is not necessary,
because in many cases of the most clearly established conspiracies there are no
means or proving any such thing, and neither law nor common sense requires
that it should be proved. If you find that these two persons pursued by their
acts the same object, often by the same means, one performing one part of an
act, so as to complete it, with a view to the attainment of the object which they

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 were pursuing, you will be at liberty to draw the conclusion that they have been
engaged in a conspiracy to effect that object. The question you have to ask
yourselves is, "Had they this common design, and did they pursue it by these
common means- the design being unlawful?
271. It will be thus seen that the most important ingredient of the offence of conspiracy
is the agreement between two or more persons to do an illegal act. The illegal act may
or may not be done in pursuance of agreement, but the very agreement is an offence
and is punishable. Reference to secs. 120-A and 120-BIPC would make these aspects
clear beyond doubt. Entering into an agreement by two or more persons to do an illegal
act or legal act by illegal means is the very quintessence of the offence of conspiracy.
272. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce
direct evidence of the same. The prosecution will often rely on evidence of acts of
various parties to infer that they were done in reference to their common intention. The
prosecution will also more often rely upon circumstantial evidence. The conspiracy can
be undoubtedly proved by such evidence direct or circumstantial. But the Court must
enquire whether the two persons are independently pursuing the same and or they have
come together to the pursuit of the unlawful object. The former does not render them
conspirators, but the latter is. It is, however, essential that the offence of conspiracy
requires some kind of physical manifestation of agreement. The express agreement,
however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is
necessary to prove the actual words of communication. The evidence as to transmission
of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University
of Canterbury, New Zealand 1974 C L R 297 explains the limited nature of this
proposition:
Although it is not in doubt that the offence requires some physical
manifestation of agreement, it is important to note the limited nature of this
proposition. The law does not require that the act of agreement take any
particular form and the fact of agreement may be communicated by words or
conduct. Thus, it has been said that it is unnecessary to prove that the parties
"actually came together' and agreed in terms" to pursue the unlawful object;
there need ever have been an express verbal agreement, it being sufficient that
there was "a tacit understanding between conspirators as to what should be
done.
273. I share this opinion, but hasten to add that the relative acts or conduct of the
parties must be conscientious and clear to mark their concurrence as to what should be
done. The concurrence cannot be inferred by a group of irrelevant facts artfully
arranged so as to give an appearance of coherence. The innocuous, innocent or
inadvertent events and incidents should not enter the judicial verdict. We must thus be
strictly on our guard.
274. It is suggested that in view of Section 10 of the Evidence Act, the relevancy of
evidence in proof of conspiracy in India is wider in scope then that in English Law.
Section 10 of the Evidence Act introduced the doctrine of agency and if the conditions
laid down therein are satisfied, the acts done by one are admissible against the co-
conspirators. Section 10 reads:
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

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 intention, after the time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons 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.
275. From an analysis of the section, it will be seen that Section 10 will come into play
only when the court is satisfied that there is reasonable ground to believe that two or
more persons have conspired together to commit an offence. There should be, in other
words, a prima facie evidence that the person was a party to the conspiracy before his
acts can be used against his co-conspirator. Once such prima facie evidence exists,
anything said, done or written by one of the conspirators in reference to the common
intention, after the said intention was first entertained is relevant against the others. It
is relevant not only for the purpose of proving the existence of conspiracy, but also for
proving that the other person was a party to it. It is true that the observations of Subba
Rao, J., in Sardar Sardul Singh Caveeshar v. State of Maharashtra
MANU/SC/0063/1963 : 1965CriL J608a lend support to the contention that the
admissibility of evidence as between co-conspirators would be liberal than in English
Law. The learned Judge said (at 390):
The evidentiary value of the said acts is limited by two circumstances, namely,
that the acts shall be in reference to their common intention and in respect of a
period after such intention was entertained by any one of them. The expression
"in reference to their common intention" is very comprehensive and it appears
to have been designedly used to give it a wider scope than the words "in
furtherance of in the English Law; with the result, anything said, done or
written by a co-conspirator, after the conspiracy was formed, will be evidence
against the other before he entered the field of conspiracy or after he left it.
276. But, with respect, the above observations that the words of Section 10 have been
designedly used to give a wider scope than the concept of conspiracy in English Law,
may not be accurate. This particular aspect of the law has been considered by the Privy
Council in Mirza Akbar v. King Emperor AIR 1940 Pc 176 at 180, where Lord Wright said
that there is no difference in principle in Indian Law in view of Section 10 of the
Evidence Act.
277. The decision of the Privy Council in Mirza Akbar's case has been referred to with
approval in Sardul Singh Caveeshar v. The State of Bombay MANU/SC/0041/1957 :
1957CriLJ1325 where Jagannadhadas, J., said:
The limits of the admissibility of evidence in conspiracy case under Section 10
of the Evidence Act have been authoritatively laid down by the Privy Council in
Mirza Akbar v. the King Emperor (supra). In that case, their Lordships of the
Privy Council held that Section 10 of the Evidence Act must be construed in
accordance with the principle that the thing done, written or spoken, was
something done in carrying out the conspiracy and was receivable as a step in
the proof of the conspiracy. They notice that evidence receivable under Section
10 of the Evidence Act of "anything said, done or written, by any one of such
persons" (i.e., conspirators) must be "in reference to their common intention".
But their Lordships held that in the context (notwithstanding the amplitude of
the above phrase) the words therein are not. capable of being widely construed
having regard to the well-known principle above enunciated.
278. In the light of these principles, the other evidence against Balbir Singh may now

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be considered. The High Court has summarised that evidence (leaving out of account
the confession of Satwant Singh and the evidence of Amarjit Singh) as follows:
Summing up, then, the evidence against Balbir Singh, leaving out of account
for the time being the confession of Satwant Singh and the evidence of Amarjit
Singh, the position is as follows: He was an officer on security duty at the PM's
house. He knew Beant Singh and Satwant singh well. He shared the indignation
of Beant Singh against Smt. Gandhi for 'Operation Blue Star' and was in a mood
to avenge the same. He went on leave from 25.6.84 to 26.7.84. On his return
he met Beant Singh and Amarjit Singh. He was present at the occasion of the
appearance of the eagle and their association on that date is borne out by
Ex.PW 26/B. He is known to have talked to Satwant Singh on 30th October,
1984....
279. I do not think that the High Court was justified in attaching importance to any one
of the aforesaid circumstances in proof of the conspiracy. The High Court first said,
Balbir Singh was an officer on security duty at the PM's house. But, like him, there were
several Sikh officers on security duty at the PM's house. It was next stated, Balbir Singh
knew Beant Singh and Satwant Singh well. Our attention has not been drawn to any
evidence to show intimacy between Balbir Singh and Beant Singh or between Balbir
Singh and Satwant Singh. The High Court next said that Balbir Singh shared the
indignation of Beant Singh against Smt. Gandhi and was in a mood to avenge for the
'Blue Star Operation". There is no acceptable evidence in this regard. From the
testimony of SI, Madan Lal Sharma (PW 13), all that we could gather is that after the
"Blue Star Operation", Balbir Singh was in agitated mood and he used to say that the
responsibility of damaging 'Akal Takhat' lies with Smt. Gandhi and it would be avenged
by them. This is not to say that Balbir Singh wanted to take revenge against the Prime
Minister along with Beant Singh. The High Court did not take into consideration such
resentment expressed by Kehar Singh (A-3) and indeed it would be proper not to take
notice of such general dissatisfaction. It is not an offence to form one's own opinion on
governmental action. It is on record that some members of the sikh community felt
agitated over the "Blue Star Operation". The resentment was also expressed by some of
the Sikh employees of the Delhi Police posted for PM's security. In fact, the chargesheet
against all the accused is founded on those averments. Amarjit Singh (PW 44)
specifically refers to this in the course of his evidence. Resentment of the accused on
"Blue Star Operation" should, therefore, be excluded from consideration. The High Court
next depended upon the earned leave taken by Balbir Singh for the period from June 25
to July 26, 1984. The High Court rightly did not give significance to casual leave
applications of Balbir Singh (Ex.PW 26/E-1 to E-5). I fail to see why taking of earned
leave should assume importance. There is no material that Balbir Singh took earned
leave for any sinister purpose of design. There is no evidence that during the said
period, he met Beant Singh or anybody else connected with the conspiracy. It is,
therefore, totally an innocuous circumstance. The High Court next said that Balbir
Singh, on his return from leave, met Beant Singh' and Amarjit Singh. No other specific
meeting has come to light except the meeting referred to by Amarjit Singh (PW 44)
which I will presently consider. The High Court lastly relied upon the act of offering
'Ardas' to falcon on its appearance at the PM's house in the first week of September,
1984. This is also from the evidence of Amarjit Singh (PW-44). Assuming that falcon
did appear and sat on a tree in the PM's house and that Beant Singh and Balbir Singh
did offer 'Ardas' on the occasion, there is, as the High Court has observed, "nothing
unusual or abnormal about the incident". The sanctity of the falcon as associated with
the Tenth Guru is not denied. They offered' Ardas' in the presence of so many class IV
employees in the PM's house. The last act of Balbir Singh, referred to by the High Court,

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was his meeting with Satwant Singh on October 30, 1984. That has been referred to by
Satish Chander Singh (PW 52), whose evidence as earlier seen has got only to be
referred to be rejected. In my opinion, all the facts and circumstances above recited are
either irrelevant or explainable. No guilty knowledge of the contemplated assassination
of the Prime Minister could be attributed to Balbir Singh on those facts and
circumstances.
280. It now remains to be seen whether the evidence of Amarjit Singh (PW 44) is
acceptable or whether it is inherently infirm and insufficient. There are grave criticisms
against this witness. I will only examine some of them. The relationship between him
and Balbir Singh was anything but cordial. It was indeed casual. They were not on
visiting terms. Amarjit Singh was not even invited to attend the marriage of Balbir
Singh. That was the type of connection that existed between them. Yet, Amarjit Singh
deposes that Balbir Singh and Beant Singh used to keep him informed regularly about
their plan of action to murder the Prime Minister. He wants the court to believe that he
was in a position to advise the conspirators against any such move. It is too difficult to
accept this self styled advisor. As a faithful security officer, he was duty bound to alert
his superiors about any danger to the Prime Minister. He knew that responsibility as he
admits in his evidence, but failed to perform his duty. To place reliance on his
testimony would be to put a premium on his irresponsibility.
281. The police have recorded three statements from Amarjit Singh on three different
dates. The first statement (Ex.Pw 44/DA) was recorded on November 24, 1984. After 25
days, the second statement (Ex.Pw 44/DB) was recorded on December 19, 1984. Both
were under Section 161 of the Code. Again on December 21,1984, the third statement
(Ex.PW 44/A) under Section 164 of the Code came to be recorded. In the first
statement, there is no express involvement of Balbir Singh. The second statement,
according to the witness, was recorded at his own instance. He deposes before the
Court:
It did not occur to me that assassination was the handywork of Balbir Singh
and Kehar Singh after I had learnt about the firing and death of Smt. Indira
Gandhi. I on recalling earlier talk realised on 24.11.1984 that the assassination
of Mrs. Indira Gandhi was the handywork of Shri Balbir Singh and Shri Kehar
Singh. Then I went to Shri R.P. Sharma who recorded my statement on
24.11.1984. A is correct that I recall things bit by bit. It is correct that there is
a difference in my statement Pw 44/ DA and Pw 44/DB. It is because many
questions were not put to me earlier and, therefore, I did not mention them in
my first statement.
He thus admits that there is difference between the first and second statement. But the
High Court said that there is no improvement or after thought so as to implicate Balbir
Singh. The approach of the High Court appears to be incorrect. Amarjit Singh (P W 44)
states before the Court:
...In the firstweek of August, 1984, I had a talk with Beant Singh. Then he told
me that he would not let Mrs. Indira Gandhi unfurl the flag on 15th August. Shri
Balbir Singh also used to tell me that if he could get remote control bomb and
his children are sent outside India, then he also could finish Mrs. Indira Gandhi.
I used to think that he was angry and I used to tell him that he should not think
in these terms....
xx XX XX XX XX

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In the third week of October, 1984, Balbir Singh told me that Beant Singh and his
family have been to Golden Temple along with Kehar Singh, her Phoopha. He further
told that SI Beant Singh and Constable Satwant Singh had taken Amrit in Sector VI,
R.K. Puram, New Delhi at the instance of Shri Kehar Singh."
282. In the first statement (Ex.PW44/DA), there is no reference to Balbir Singh telling
the witness that if he could get remote control bomb and his children are sent outside
India, he could also finish Mrs. Indira Gandhi. There he has stated:
In the end of September, 1984, SI Balbir Singh met me once in the Prime
Minister's house and told me that Beant Singh wanted to kill the Prime Minister
before 15th of August. He (Beant Singh) had agreed to kill her (Prime Minister)
with a grenade and remote control but this task was to be put off because the
same could not be arranged, actual words being 'IN DONO CHEEZON
KAINTEZAM NAHIN HO SAKA IS LIYE BATT TAL GAVE1.
283. Again in the first statement (Ex.PW 44/DA) what he stated was:
In the third week of October, 1984, Beant Singh, SI met me and told me that he
had procured one constable, actual words being October, 1984 FETEESRA
HAFTEMAIN BEANT SINGH MUJHE MILA AUR USNE BATAYAKE USNEEK
SIPAHIPATAYA HAT and that now both of them would put an end to Smt. Indira
Gandhi's life very soon.
284. The discrepancies between the first version and the evidence in Court are not
immaterial. They are substantial and on material points. The witness is putting the
words of Beant Singh into the mouth of Balbir Singh and thereby creating circumstances
against the latter.
285. Lastly, the reference is made to the confession of Satwant Singh (Ex.PWH//C) to
support the prosecution version. But it is as much a bad step as others in this case. The
confession of a co-accused could be used only to lend assurance to the conclusion on
the acceptable evidence against the accused. When by all the testimony in the case,
Balbir Singh's involvement in the conspiracy is not established, the confession of
Satwant Singh cannot advance the prosecution case. Even otherwise, the reference in
the confession as to the conspiracy between Balbir Singh and Beant singh was not
within the personal knowledge of Satwant Singh. He refers to Beant Singh consulting
Balbir Singh and "advising" to kill PM. It is not clear who told him and when? Such a
vague statement is of little use even to lend assurance to any acceptable case against
Balbir Singh.
286. In my judgment, the evidence produced by the prosecution against Balbir Singh is
defective as well as deficient. It is safer,, therefore, to err in acquitting than in
convicting him.
KEHAR SINGH(A-3):
287. Kehar Singh was an Assistant in the Directorate General of Supply and Disposal,
New Delhi. The case against him is: That he was a religious fanatic. He had intense hate
against Mrs. Indira Gandhi for causing damage to the Akal Takhat by the "Blue Star
Operation". He was in a position to influence Beant Singh, since he was the uncle of
Beant Singh's wife called as 'Poopha'. He converted Beant Singh and through him
Satwant Singh to religious bigotry. He made them to undergo "Amrit Chakhan
Ceremony" on October 14, 1984 and October 24, 1984 respectively at Gurudwara, R.K.

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Puram, New Delhi. He also took Beant Singh to Golden Temple, Amritsaron October
20,1984.
288. The prosecution, in support of the case that he was a party to the conspiracy to
murder Mrs. Indira Gandhi, relied on the following:
(1) Ujagar Sandhu incident; (2) Darshan Singh incident
(3) Amrit Chakhan ceremony; and (4) Amritsar trip.
2 8 9 . Besides, the prosecution relied upon his reaction to "Blue Star Operation",
attendance in office, post crime conduct, and a pamphlet in "Gurumukhi" captioned
"Indira De Sikh". The recovery of gold 'kara' and gold ring belonging to Beant Singh
from the residence of this accused was also depended upon.
290. Both the courts have generally accepted the prosecution version and held that the
conspiracy to assassinate Mrs. Indira Gandhi was hatched out by all the three persons,
that is, Kehar Singh, beant Singh and Satwant Singh.
2 9 1 . I will first try to eliminate the irrelevant evidence against this accused. The
prosecution examined three witnesses to prove the reaction of the accused to "Blue Star
Operation": O.P. Sharma (PW 31), Darshan Singh Jaggi (Pw 32), and Krishan Lal Uppal
(PW 33). These witnesses have testified that Kehar Singh was very unhappy at the
consequences of "Blue Star Operation" and he considered that Smt. Gandhi was
responsible for the same. In fairness to the accused, it shall be kept out of account for
the reasons given by me while discussing the case of Balbir Singh. I shall also exclude
from consideration the pamphlet captioned "Indira De Sikh" (Ex.P.53) and the
connected evidence of Raj Bir Singh (PW 54), Bal Kishan Tanwar, ACP (PW 63) and
Daya Nand (PW 66). That pamphlet in "Gurumukhi" no doubt, contains vitriolic attack
on Mrs. Indira Gandhi. But it was recovered from an open drawer of the office table of
Kehar Singh when he was not in office. It is a printed matter. It does not show that
Kehar Singh was the author of it. Nor there is any evidence to indicate that Kehar Singh
has anything to do with it.
292. I shall not take notice of "Darshan Singh incident" either. It was alleged to have
occurred in the Gurudwara, Moti Bagh, New Delhi, a couple of days before Raksha
Bandhan day (August 18, 1984). It appears that there was a kirtan of Prof. Darshan
Singh, who spoke very movingly about the consequences of "Blue Star Operation".
Kehar Singh and Beant Singh were said to be present on the occasion. After nearing the
speech of Prof. Darshan Singh, Beant Singh was found to be sobbing. Thereupon, Kehar
Singh told him that he should not weep, but take revenge. This has been spoken to by
Inder Bir Singh (PW 68). This incident has a story behind. In the newspaper 'Tribune'
dated November 25, 1984, there was an article (Ex. D.62/X) written by certain
Prabhojot Singh. The article goes by the headline 'Profile of an Assassin'. It was written
therein:
There was a sudden transformation in the thinking of Beant Singh after the
Army action. He started accompanying his uncle Kehar Singh, an Assistant in
the officer of the Director General Supplies and Disposal to Gurudwara Moti
Bagh. In July, a noted Ragi from Punjab performed "viragkatha" at the
Gurudwara. Beant Singh was moved and reportedly starting crying. It was at
this stage, Kehar Singh told him not to cry, but to take "revenge".
293. The investigating agency has admittedly secured that Newspaper well in time. It

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was preserved in their office file. K.P. Sharma (PW 70) has deposed to this. But he
examined PW 68 only on July 3,1985, that is, after the accused were committed to take
their trial. It is said that the news item in Tribune is very vague and despite the best
efforts, none except PW 68 could be secured till July 3. This is unacceptable. The said
article furnishes sufficient leads; like "Virag Katha" noted Ragi, Moti Bagh Gurudwara,
the month of July, Kehar Singh and Beant Singh together attending the function, etc.
The author of the article is Prabhojot Singh. The investigating officer could have got
some more particulars if Prabhojot Singh had been approached. But nobody approached
him. Nor anybody from the said Gurudwara has been examined. The function in which
the noted Prof. Darshan Singh Ragi participated could not have been an insignificant
function. A large number of local people, if not from far off places would have attended
the function. No attempt appears to have been made in these directions to ascertain the
truth of the version given in the 'Tribune'. PW 68 is a solitary witness to speak about
the matter. He claims to know Kehar Singh but not Beant Singh. It is not safe to accept
his version without corroboration.
294. Let me now descend to the relevant material against the accused. 'Ujagar Sandhu'
incident is relevant and may be taken note of. The incident is in connection with
celebration of the birthday of a child in Sandhu's house to which Kehar Singh alone was
invited but not Beant Singh. Kehar Singh, however, persuaded Beant Singh and Mrs.
Bimla Khalsa (PW 65) to accompany him. They went together and participated in the
function. Bimla Khalsa swears to this. It is common ground that there were inciting and
provocating Bhajans in that function. The provocating Bhajans were in the context of
destruction of Akal Takhat by the "Blue Star Operation". But it is argued that there is no
evidence that Beant Singh and his wife were deliberately taken by Kehar Singh tc
expose them to provocative Bhajans. There may not be any such evidence, but it may
not be non sequitur when one takes an uninvited guest to such function in the
circumstances of this case.
295. The incident on October 17, 1984 in the house of Beant Singh, to which Bimla
Khalsa testifies, is more positive. It plainly indicates that Kehar Singh and Beant Singh
were combined and conspiring together. She has deposed that Kehar Singh came to her
house and was closeted with Beant Singh on the roof for about 18/15 minutes. There
was hush hush talk between them which could not be over-heard by Bimla Khalsa, as
she was in the kitchen. That evoked suspicion in her mind. She did consider if I may
use her own words "theirtalk as something secret".There, then, she enquired from Kehar
Singh replied that the talks were "with regard to making somebody to take Amrit".
Bimla Khalsa remarked; "that taking Amrit was not such a thing as to talk secretly." She
was perfectly right in her remark. There cannot be a secret talk about Amrit taking
ceremony. It is religious function. Kehar Singh might have realised that it would be
difficult to explain his conduct without exposing himself. He came with cryptic reply:
"There was nothing particular".
296. Bimla Khalsa further deposed that in the same evening Kehar Singh took meals in
her house alongwith her husband and Satwant Singh who later joined them.
297. Apparently, Beant Singh did not like his wife enquiring about the exchange of
secret information between him and Kehar Singh. On October 20,1984, when they were
in Amritsar, Beant Singh had asked his wife why she had questioned Kehar Singh as to
what they were talking on the roof on October 17, 1984.
298. It may be pertinently asked: Why did Kehar Singh and Beant Singh suppress the
conversation? Why did Kehar Singh give such reply to Bimla Khalsa? If the conversation

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related to taking of Amrit by Beant Singh or his wife, there was no necessity to have a
secret talk, since Beant Singh and Bimla Khalsa had already taken Amrit by then. Kehar
Singh knew it and in fact he had accompanied Bimla Khalsa for that ceremony. The said
conversation, as the High Court has observed could be only to further the prosecution of
the conspiracy. Satwant Singh later joining them for meals lends credence to this
conclusion.
299. An endeavour is made to impeach Bimla Khalsa, first, on the ground that she
turned hostile, and second, that she was examined belatedly. I must state that merely
because she turned hostile, her evidence cannot be discarded. That is a well accepted
proposition. She has no axe to grind against any person. She gains nothing by telling
falsehood or incorrect things against Kehar Singh. She has revealed what she was told
and what she had witnessed on October 17,1984 in her own house. There is, therefore,
no reason to discard that part of her testimony. As to the second complaint, it is true
that the police did not record her statement immediately after the incident. That is
understandable. She has lost her husband. She was in immeasurable grief. She ought to
be allowed time to compose herself. Both the objections raised against her testimony
are, therefore, not sound.
300. Beant Singh appears to have planned to murder Mrs. Gandhi on October 25,1984.
It has been indicated by his own writing on the text of the 'Vak' recovered on search of
his house at 3 AM on November 1,1984. Balraj Nanda (PW 16) who searched his house
along with others recovered a book under the title "Bhindranwale Sant" (Ex.P.36).
Inside the book, a copy of 'Hukamnama' (Vak) dated October 13, 1984 written in saffrro
ink was found (Ex.P.39). On the reverse of Ex.P.39, the following two dates are written:
"25.10.1984 -I Yes. 26.10.1984 - Yes 8 AM to 10 AM."
301. This writing has been proved to be that of Beant singh. It has been established by
the evidence of Bimla Khalsa and the testimony of other witnesses. Bimla Khalsa has
stated that Ex.P.39 is in the handwriting of Beant Singh on both sides thereof. The
evidence of P.C. Maiti (PW 24), Additional Director, Institute of Criminology and
Forensic Science, New Delhi and S.K. Sharma (PW 25), Assistant Director (Document)
in the same Institute also confirms that fact.
302. Against this background, the visit to Amritsar assumes importance. On October
20, 1984, Kehar Singh and Beant Singh along with their family members went to
Amritsar. There they stayed in the house of one Mr. M.R. Singh (PW 53). Bimla Khalsa
states that they reached Amritsar at 2-3 PM and went to Darbar Sahib Gurudwara in the
same evening. While ladies and children were listening to kirtan, Beant Singh and Kehar
Singh went to see the Akal Takht. Bimla Khalsa wanted to accompany them to see the
Akal Takht, but she was told to see the same on the next morning. What happened on
the next day is still more curious. In the early house, PW 53 was woken up by Kehar
Singh and told that he would attend "Asa Ki War-Kirtan" in Darbar Sahib. So stating, he
went along with Beant Singh. The ladies and children were left behind. They went to
Darbar Sahib at 8 AM along with PW 53. They returned home at 11 AM and had lunch
with PW 53. Beant Singh and Kehar Singh did not join them for lunch, nor they returned
to the house of PW 53. PW 53 took the ladies and children to Railway Station to catch
the train for the return journey.
Beant Singh and Kehar Singh appeared there and all of them left by the same train.
What is significant to note herein is about the relative character of Kehar Singh and
Beant Singh. Even at the most sacred place they remained isolated from their wives and
children. No wonder, birds of the same feather fly together.

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303. It is suggested that Kehar Singh being an elderly person and a devout religious
Sikh was keeping company with Beant Singh to dissuade the latter from taking any
drastic action against Mrs. Gandhi. I wish that Kehar Singh had done that an given good
advice to Beant Singh. He had the opportunity to bring Beant Singh back to the royal
path, but unfortunately, he did nothing of that kind. If he had not approved the
assassination of the Prime Minister, Beant Singh would not have grafted Satwant Singh
to the conspiracy. Secondly, if Kehar Singh was really interested in redeeming Beant
Singh, he would have taken the assistance of Bimla Khalsa. He did not do that even.
She was deliberately not taken into confidence. She was in fact kept in darkness even
though she was inquisitive to know their secret talk.
304. It is true that there is no substantive evidence from the testimony of Bimla Khalsa
that Beant Singh took Amrit on October 14, 1984 at the instance of Kehar Singh. Bimla
Khalsa has only stated "I cannot say if on the 14th October, 1984, Beant Singh had
taken Amrit at the instance of Kehar Singh in Sector VI, Gurudwara, R.K. Puram, but on
the 13th October he was telling me that he was going to take Amrit." The fact, however,
remains that Beant Singh took Amrit on October 14, 1984. Kehar Singh was
undisputedly present at the ceremony in which Bimla Khalsa took Amrit. It may not be,
therefore, unreasonable to state that he must have been present when Beant Singh also
took Amrit. The recovery made from his house supports this inference. It is said that
while taking Amrit or thereafter, the person is not expected to wear gold ornaments.
Beant Singh had gold 'kara' (Ex.P.27) and ring (Ex.P.28). These two articles were
recovered by the investigating agency from the house of Kehar Singh. That is not
disputed before us. Beast Singh must have entrusted the articles to Kehar Singh at the
time of his taking Amrit. It also shows the significant part played by Kehar Singh in
taking Amrit by Beant Singh.
305. It is true that taking Amrit by itself may not have any sinister significance. It is a
religious ceremony and 'Amrit' is taken only to 'lead a life of spartan purity giving up all
worldly pleasures and evil habits'. But, unfortunately, the assassins have misused that
sacred religious ceremony for ulterior purpose.
The post crime conduct of Kehr Singh is conclusive of his guilt. He was cognizant of all
the details of the coming tragedy and waiting to receive the news on that fateful day.
That would be clear from the testimony of Nand Lal Mehta (PW 59) who was an office
colleague of Kehar Singh. He has deposed that Kehar Singh had met him in the third
floor corridor of the office at about 10.45 AM on October 31, 1984. By that time, the
news of the murderous attack on the Nation's Prime Minister came like a thunderbolt
from a clear sky. The messenger had told that 'somebody had shot at Mrs. Gandhi. PW
59 then enquired from Kehar Singh as to what had happened. Kehar Singh replied that
"whosoever would take confrontation with the Panth, he would meet the same fate." So
stating, he went away. It may be noted that at that time, there was no specific
information to the outside world whether any Sikh had shot the Prime Minister or
anybody else. Unless Kehar Singh had prior knowledge, he could not have reacted with
those words.
306. To sum up: His close and continued association with Beant Singh; his deliberate
attempt to exclude Mrs. Bimla Khalsa from their company and conversation; his secret
talk with Beant Singh followed by taking meals together with Satwant Singh; his
keeping the gold 'Kara' and 'ring' of Beant Singh; and his post crime conduct taken
together along with other material on record are stronger as evidence of guilt than even
direct testimony. I agree with the conclusion of the High Court that Kehar Singh was
one of the conspirators to murder Mrs. Gandhi, though not for all the reasons stated.

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SATWANT SINGH (A-1):
3 0 7 . He was a constable in the Delhi Police recruited on January 12, 1982. After
training, he was posted in the Fifth Battalion of the Delhi Armed Police (DAP). After
further commando training, he was posted in the Second Battalion of the DAP.
Thereafter, he was posted in the 'C' company of the Battalion at the lines on Teen Murti
Lane where he reported for security duty at the Prime Minister's house on July 2,1983.
308. There are three charges against Satwant Singh:
(i) Section 302 read with 120-B and 34 IPC for murdering the Prime Minister
Mrs. Indira Gandhi; (ii) Section 307 IPC for the attempted murder of
Rameshwar Dayal (PW10); and (iii) Section 27 of the Arms Act.
309. In proof of these charges, the prosecution have examined three eye witnesses to
the occurrence. Narain Singh (PW 9), Rameshwar Dayal (PW 10) and Nathu Ram (PW
64). Besides, Sukhvir Singh (PW 3), Raj Singh (PW 15), Desh-pal Singh (PW 43) and
Ganga Singh (PW 49) have also been examined.
310. On October 31, 1984, in the usual course, Satwant Singh was put on security at
Beat No. 4 in the Akbar Road House (not at the TMC Gate). This has been confirmed by
the daily dairy maintained at Teen Murti (Ex.PW 14/C) -(Entry No. 85). Raj Singh (PW
15) has testified to this entry. Satwant Singh was given arm and ammunition. He was
issued SAF Carbine (Sten-gun) having Butt No. 80 along with 5 magazines and 100 live
rounds of 9 mm ammunition. In acknowledgment thereof, he has signed the register
(Ex.PW 3/A). Sukhvir Singh (PW 3) has deposed to this. With the said arm and
ammunition, Satwant Singh left Teen Murti Lines at about 6.45 AM to take up his duty
at Beat No. 4. But he did not go to that spot. The case of the prosecution is that
Satwant Singh had got exchanged his place of duty to carry out the conspiracy he had
with Beant Singh to murder Mrs. Gandhi. But, on the other hand, the accused states that
he had been "decoyed" to the TMC Gate by certain persons; that he was injured by the
cross firing; that he fell down and was not in a position to shoot the Prime Minister or
anybody. The fact, however, remains that Satwant Singh got exchanged his place of
duty with that of Deshpal Singh (PW 43). It appears that one Head Constable Kishan Lal
No. 1109 allowed the sentries to exchange their places since Satwant Singh was
suffering from loose motions and TMC Gate being nearer to a latrine. So, Deshpal Singh
took up position at Beat No. 4 while Satwant Singh at TMC Gate.
311. Three eye witnesses to the occurrence: (i) Narain Singh; (ii) Rameshwar Dayal;
and (iii) Nathu Ram corroborate with each other on all material particulars. They had
accompanied the Prime Minister on the fateful day. They were able to see vividly,
describe correctly and identify properly the persons who gunned down Mrs. Gandhi.
Both the Courts below have accepted them as natural and trustworthy witnesses. Such a
conclusion based on appreciation of evidence is binding on this Court in the appeals
under Article 136. I may, however, briefly refer to their evidence.
312. Narain Singh (PW 9) is a Head Constable. He was on duty from 7.30 AM on
October 31, 1984. He has deposed that at 8.45 AM, he came to know that the Prime
Minister had to go to No. 1 Akbar Road, to meet certain foreign T.V. representatives. He
took up an umbrella and remained ready to follow the Prime Minister. According to him,
at 9.10 AM, Smt. Gandhi emerged out of the house followed by Mr. R.K. Dhawan Private
Secretary and Nathu Ram (PW 64). He has stated that he moved over to the right side of
Mrs. Gandhi holding the umbrella to protect her against the Sun. They proceeded
towards the TMC Gate. The TMC Gate was kept open, where Beant Singh was on the left

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side and Satwant Singh on the right side. When they were about 10 or 11 feet from the
TMC Gate, Beant singh took out his revolver from his right dub and fired at Mrs. Gandhi
Immediately, Satwant Singh also started firing at Mrs. Gandhi with his Sten-gun.
Mrs.Gandhi fell down. He threw away the umbrella, took out his revolver and dashed
towards Beant Singh to secure him. He saw Mr. Bhatt, the personal guard of Mrs.
Gandhi and ITBP personnel arriving there and securing Satwant Singh and Beant Singh.
He noticed that Rameshwar Dayal (PW 10) was also hit by bullets. He has further stated
that the Doctor came running. Mrs. Sonia Gandhi too. They lifted Mrs. Gandhi and
placed in the rear seat of the escort car that was brought there. Mrs. Gandhi was taken
to the AIIMS accompanied by the Doctor and Mrs. Sonia Gandhi on the back seat and
Mr. Bhatt, Mr. Dhawan and Mr. Fotedar on the front seat of the car. He also went to the
hospital where Kochar (PW 73) came and took his statement. That statement formed the
basis of the F.I.R. in this case.
313. There can be little doubt as to the presence of Narain Singh at the spot. His
evidence receives full corroboration from the other two eye witnesses. The umbrella
(Ex.P. 19) which he was holding has been recovered from the place under the seizure
memo (Ex.PW 5/H).
314. Rameshwar Dayal (PW 10) is an A.S.I. of Police. He was on security duty at the
PM's residence. He was also the water attendant in the pilot car of the Prime Minister.
From his evidence, it will be seen that he had gone to the pantry in the PM's house and
got thermos flasks with water, napkins and glass. He was informed that the Prime
Minister had an engagement with a T.V. Team at the Akbar Road premises. He went
there and saw the T.V. Team. He met the gardner and asked for a 'guldasta', but the
gardner said that he would prepare and get it. In the meantime, he saw the Prime
Minister coming out of the house and proceeding towards Akbar Road premises followed
oy Mr. R.K. Dhawan and others. He also joined the entourage. Rest of his evidence is
identical in terms with that of Narain Singh (PW 9). According to him, he ran to shield
Mrs.Gandhi, but was hit by bullets. Undisputedly, he had suffered bullet injuries. He
was admitted to the AIIMS for treatment. The Medico-legal Certificate (MLC) issued by
the AIIMS (Ex.10/ DA) supports his version. No further corroboration is necessary to
accept his evidence.
315. Nathu Ram (PW 64) is also an eye witness. He was a dedicated servant of Mrs.
Gandhi. He was always with Mrs. Gandhi not only when she was in power but also when
she was out of power. His duty was to clean and dust the library-cum-bed room of the
Prime Minister and then stand by in attendance. He has deposed that he was informed
by Mrs. Gandhi about the change of programme in the morning of October 31 and was
asked to ring up to the make-up persons to come. Accordingly, he called to make-up
persons at 7.35 AM. After Mrs. Gandhi was ready and left the room at about 9.05 AM,
he followed her. He has testified that Mrs. Gandhi was accompanied by Mr. R.K. Dhawan
and followed by Narain Singh and Rameshwar Dayal. His evidence as to the relative acts
of the two assassins is consistent with the version of PW 9 and PW 10. As a faithful
servant, he has helped to lift and carry Mrs. Gandhi to the car. His presence at the spot
was most natural. His evidence is simple and straightforward.
3 1 6 . Ganga Singh (PW 49) has spoken to events that immediately followed the
assassination of the Prime Minister. He is a lance-naik in the ITBP commando force
placed on duty at the PM's residence. When he heard the sound of fire arms from the
TMC Gate, he ran to the spot as duty bound. He found Mrs. Gandhi on the ground lying
injured. He saw two Sardars out of whom one was in uniform whom he identified in the
Court as Satwant Singh. He has deposed that his Inspector Tarsem Singh who also

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came there made the Sardars hands up. He and other ITBP personnel secured the
Sardars and took them to guard room. At the spot, he took possession of ruck-sack
(Ex.P. 21) from Satwant Singh. The ruck-sack contained four magazines of 9 mm
carbine, two of which were full (one with 20 bullets and the other with 30 bullets) and
two empty.
317. The presence of Satwant Singh at TMC Gate is also not in dispute and indeed it
was admitted by him while answering question No. 51(A) in the examination under
Section 313 of the Code. What is important to notice from the testimony of Ganga Singh
is that Satwant Singh when apprehended by him was not injured. He was taken safely
to guard room. He did not receive any bullet injury in the incident with which we are
concerned. He must have been shot evidently inside the guard room where he was
taken for safe custody by the ITBP personnel. The defence put forward by Satwant
Singh that he was decoyed to the TMC gate where he received bullet injury is therefore,
patently false.
318. The eye witnesses are not strangers to the assassins. They were familiar faces in
the security ring of the Prime Minister. Their presence with Mrs. Gandhi at the spot was
not accidental, but consistent with their duties. There was no scope for mistaken
identity since everything happened in the broad day light. Therefore, the evidence thus
far discussed itself is sufficient to bring home the guilt to Satwant Singh on all the
charges levelled against him.
319. If necessary, the records contain evidence as 'to the identification of arms and
ammunition entrusted to the assassins. I have already referred to the evidence relating
to the sten-gun(Ex.P.4) and ammunition delivered to Satwant singh. The sten-gun along
with 25 empties of the sten-gun was recovered from the place of incident under the
seizure memo (Ex.PW 5/H). The revolver (Ex. P. 1) delivered to Beant Singh and 5
empties of the revolver were also collected at the spot. Dr. T.D. Dogra (PW 5) while
conducting limited postmortem examination has taken two bullets from the body of Mrs.
Gandhi one from injury No. 1 and the other from injury No. 2. These bullets along with
the arms recovered from the spot were sent for the opinion of G.R. Prasad (Pw 12),
Principal Scientific Officer, Ballistic Division, GFSL, New Delhi. P.W. 12 has testified that
the bullets recovered from the body of Mrs. Gandhi are traceable to the sten-gun and
the revolver. Similar is the evidence with regard to the other bullets recovered from the
place of incident. The record also contains evidence about the total tally of the bullets
fired and the empties collected. It is needless to discuss that evidence here.
320. It is, however, argued for the accused that the finger prints found on the sten-gun
were not tested for comparison and the two bullets recovered from the body of Mrs.
Gandhi were not examined for the traces of blood or tissues. It is further said that the
post-mortem examination conducted by Dr. Dogra ought to have been full and complete
to clinch the issues. There is no substance in these contentions. It is not necessary to
confirm the finger prints on the sten-gun, as that of the accused when it is proved that
that sten-gun was delivered to him. The examination of the bullets recovered from the
body of Mrs. Gandhi for the traces of blood or tissues is also unnecessary, since one of
the bullets taken by the Doctor tallied with the sten-gun (Ex.P.4). Equally, limited post-
mortem examination conducted by Dr. Dogra would not affect the merits of the case. It
is not always necessary to have a complete post-mortem in every case. Section 174 of
the Code confers discretion to the Police Officer not to send the body for postmortem
examination if there is no doubt as to the cause of death. If the cause of death is
absolutely certain and beyond the pale of doubt or controversy, it is unnecessary to
have the post-mortem done by Medical Officer. In the instant case, there was no

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controversy about the cause of death of Mrs. Gandhi. A complete post-mortem of the
body was therefore uncalled for.
3 2 1 . From the aforesaid direct testimony coupled with the other clinching
circumstances available on record, there is not even an iota of doubt about the crime
committed by Satwant Singh. I agree with the High Court that he is guilty of all the
charges. In this view of the matter, it is unnecessary to burden this case by reference to
confession of Satwant Singh.
322. This takes me to the question of sentence. Section 354(3) of the Code, 1973
marks a significant shift in the legislative policy of awarding death sentence. Now the
normal sentence for murder is imprisonment for life and not sentence of death. The
Court is required to give special reasons for awarding death sentence. Special reasons
means specific facts and circumstances obtained in the case justifying the extreme
penalty. This Court in Bachan Singh v. State of Punjab MANU/SC/0055/1982 :
1980CriL J636 has indicated certain guidelines to be applied to the facts of each
individual case where the question of imposing death sentence arises. It was observed
that in cases where there is no proof of extreme culpability the extreme penalty need
not be given. It may be given only in rarest of rare cases where there is no extenuating
circumstance. In Machhi Singh v. State of Punjab MANU/SC/0211/1983 :
1983CriL J1457 , this Court again indicated some principles as to what constitute "The
rarest of rare cases" which warrant the imposition of death sentence. The High Court
has carefully examined these principles and given reasons why in this case, the death
sentence alone should be awarded.
3 2 3 . In my opinion, the punishment measured is deserved. There cannot be two
opinions on this issue. The "Blue Star Operation" was not directed to cause damage to
AkalTakht. Nor it was intended to hurt the religious feelings of Sikhs. The decision was
taken by the responsible and responsive Government in the national interest. The Prime
Minister (late) Mrs. Indira Gandhi was, however, made the target for the consequences
of the decision. The security guards who were duty bound to protect the Prime Minister
at the cost of their lives, themselves became the assassins. Incredible but true. All
values and all ideals in life; all norms and obligations are thrown to the winds. It is a
betrayal of the worst order. It is the most foul and senseless assassination. The
preparations for the execution of this egregious crime do deserve the dread sentence of
the law.
324. Having regard to the views which I have expressed, I too would dismiss the
appeals of Kehar Singh and Satwant Singh, but allow the appeal of Balbir Singh by
setting aside his conviction and sentence, and acquitting him of all the charges.
325. Before parting with the case, I would like to express my gratitude to counsel
amicus curiae for their willingness to assist, on behalf of the accused. With their
profound learning and experience, they have argued the case remarkably well. I must
also place it on record my appreciation about the deep learning and assiduity with.
which Mr. G. Ramaswami, Additional Solicitor General assisted on behalf of the State.
He was extremely fair to the Court as well as to accused.
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