Holding

The Special Courts Act, 1979 is constitutionally valid, and the lack of sufficient evidence of conspiracy leads to the acquittal of the appellants.

Summary

The Supreme Court examined the conviction of V.C. Shukla and Sanjay Gandhi for alleged conspiracy to destroy the film "Kissa Kursi Ka" under various sections of the Indian Penal Code. The Court held that the Special Courts Act, 1979 – which created special courts for offences by persons holding high public or political office – is a valid classification under Art.14 and does not violate Art.21. It further found that the prosecution failed to prove any agreement or meeting of minds between the accused, and the evidence on the alleged transfer and burning of the film material was insufficient. Consequently, the convictions were set aside and the appeals were allowed, acquitting the appellants.

Issues considered

The constitutional validity of Sections 5, 7, 9 and 11 of the Special Courts Act, 1979.
Whether the classification of "persons holding high public or political offices" violates Art.14 of the Constitution.
Whether the procedure prescribed by the Act is harsher and violative of Art.21.
Whether a declaration under Section 5(1) is valid and can be challenged.
Whether the transfer of appeals from the High Court to the Supreme Court under Section 7 is constitutionally permissible.
Whether the prosecution proved the elements of criminal conspiracy under Sec.120B IPC.

Legislation cited

Cinematograph (Censorship) Rules, 1958s. 25(2)
Code of Criminal Procedures. 238, s. 239, s. 240, s. 241, s. 242, s. 243, s. 248, s. 374(2), s. 377, s. 384, s. 397, s. 406
Commissions of Inquiry Act, 1952
Defence of India Rules
Indian Penal Code, 1860s. 109, s. 120B, s. 201, s. 409, s. 411, s. 414, s. 435
Special Courts Act, 1979s. 10, s. 11, s. 12, s. 13, s. 3, s. 4, s. 5, s. 6, s. 7, s. 8, s. 9

Subjects

criminal conspiracyspecial courtsconstitutional validityarticle 14article 21high public officefilm censorshipevidence standardacquittalappeal transfer

Judgment

500

A V. C. SHUKLA
v.
STATE (DELHI ADMINISTRATION)
April 11, 1980
B [S. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JJ.]

Criminal Conspiracy, inf;redients of-Section 1201J of the Indian Pena{
Code, evidence required to prove criminal conspiracy explained-Approve;·s
ei•idcnce, value of.

Words and Phrases-"High Public or political (JjJices''-Meaning of.
c Special Court's Act 1979, ss. 5, 7, 9 & 11-Constitutional validity nf.

Sri Amrit Nahata PW 1 was a member of Parliament and had produced &
film titled "Kissa Kursi Ka" ur..der the banner of Dhwani Prakash. The, film
according to the prosecution was a grotesque 'satire containing a scathing criti-
cism of the functioning of the Central Government and was open to serious
D objections which were taken even by the Ceia.tral Board of Film Censors. After
the film was ready for release, PW 1, Amrit Nahata, applied for certification
of the film on the 19th of April 1975 before the Boord. The film,was viewed
on April 24, 1975 by an Examining Committee of the Board and whil.::· three
members were of the opinion that certificate for exhihition, with drastic cuts. '
'·
should b~ given, another member and Mr. N. S. Thapa, Chairman, disngreed
with the opinion of their colleagues a-nd accordingly referred the matter to the
Revising Committee. The Revising Committee after viewing the film agreed
by a majority of 6 :1 for certification of the film, the dissent having been
voiced by Mr. Thapa, the Chairman and accordingly under Rule 25 (ii) of the
Cinematograph (Censorship) Rules, 1958, a reference waB made· to the Centrit.l
Government on 8-5~1975. In this connection, a letter was addressed to PW
6, Mr. S. M. Murshed, who, was at the relevant reriod Director in the Minis-
try of Information & Broadcasting, Incharge of film and- T. V. Projects and

• was appointed, Joint Secretary on 1st of May 1975. Before making his com-
ments PW 6 saw the film some time in the middle of May, 1975. Meanwhile,
PW 1, Amrit Nahata, was directed to deposit the positive print of the film
comprising 14 reels of 35 mm with the Film Division Auditorium, situate at!
1, Mahadev Road, New Delhi. In pursuance of these directions PW 1 depO-
sited the positive print and an entry thereof (Ext. 17A) was made by the
Librarian-cum-Projectionist of the Auditorium. PW 17, K. P. Sreedharan, who •
G \Vas a Technical Officer incharge· also inspected the reels and found them iit
order.
Although Murshed, PW 6, after seeing tho film aj!reed with the opinion of
the Chairman of the Board that the film may be1 open to objection on tho
ground that it was full of sarcasm and contained critici~m of the political func-
tioning of the Governmental machinery yet he was pe!('Sonally of the opinion
that certification for exhibition should not be refused. PW 6 accordingly
H recorded a note and submitted it to Mr. A. J. Kidwai, the then Secretary,
!\iinistry of Information and Broadcasting. The matter \Vas then examined
by Mr. I. K. GujraJ, the then Minister of Information and Broadcasting but
V. C. SHUKLA V. DELHI ADMN. 501

no final decision was taken. Meanwhile PW J, Amrit Nahat,., filed a writ
petition (Ex. PW I /D) in the Supreme Court. On the 23rd of the June
1975, a notice was issued by the Ministry of Information and Broadcasting to
PW 1, Amrit Nahata, to show cause why, certification to the film be riot' refused.
1he notice was made returnable by 9-7-75. Thus the Ministry of Information

• and Broadcasting had taken a tentative decision to refuse- certification to the
film because of its objectionable and offensive. nature.
B
Emergency was proclaimed on the night of between 25th and 26th of June,
• 19i 5 and soon thereafter A 1 took charge as the Union Minister of Informa-
tion and Broadcasting and he was of thei opinion that the film should be
banned. On July 5, 1975, in pursuance of the decision taken by the Central
Government, the Coordination Committee directed seizure of the film and that
its negatives, positives and all other materi<l!ls relating to it be takeru in the
-A" custody of the Central Government vide Ex. PW 6/0. On July 10, 1975
A 1 directed that the film be banned for screening under the Defence of India
c
Rules, vide Ext. PW 6/E-4. Finally, on the 11th of July 1975 PW 6
?vlurshed, passed an order that no certificatiOOI was to be given to the film for
public exhibition which was followed by a letter dated July 14, 1975, forfeit-
ing the fi]m, to the Government. In pursuance' of the decision taken hy the
Central Government PW 39, S. Ghosh Deputy Secretary, incharge of the films
and T. V. Division wrote a letter to the Chief Secretary Goveir:ninent of Maha- D
rashtra for seizure of all the positives and negatives of the film as also other
related materials. In pursuance of this order, the Bombay police seized the
entire film on l-8-1975 and depooited in the godown of the Board. As, how-
ever, a final order had been passed by the Government banning the film. PW,
1, Arnr:it Nahata filed a petition for special leave in the· Supreme Couert OOI
6-9-1975. This petition was heard on 29-10-75 and the Court directed the
Government to screen the film on 17-11-75 in the Auditorium for being shown E
to the Judges constituting the Bench. Jn pursuance of the order of the Court,
intimation was sent to the Ministry concerned and PW 62, Mr. S. M. H.
Burney who was then Secretary l\finistry · of Information and Broadcasting
directed that immediate action be taken to implement the orders of the
Supreme Court and that arrangements should be made· to book the Auditorium
for 17-11-75. By a letter dated 5-11-75 (Ext. PW 2/A2) the Supreme Court
was also informed regarding the steps taken. Sometime thereafter PW 2, L.
Dayal took over as Joint Sd:retary (Films Division) in place of Mr. f\.furshed.
The film, however, was not shown to the Judges of the Supreme Court on the
'
ground that the films v,rere not traceable.

After the general elections of March 1977, the new Government directed
the Central Bureau of Investigation to investigate into the matter of disappear-
ance of the films. The C.B.I. accordingly investigated the matter and found
that A l, V. C. Shukla and A 2 Sanj&y Gandhi conspired together and ulti-
G
mately burnt them in Man1ti Complex. Therefore C.B.I~ filed charge sheets
against V. C. Shukla A 1 and Sanjay Gandhi A 2 under several provisions of
Penal Code. The prosecution examined several ~.vitnesses to prove criminal
conspirocy of A 1 and A 2 more paricularly under three stages, namely, (i)
the deposit of the ix>sitive print in the Auditorium and its alleged transfer to
the personal custody of A 1; (ii) the arrival of thirteen trunks containing nega-
tives and other material related to the film at New. Delhi from Bombay in pur-
D
suance of the orders of A 1 and thelir transfer to I, Safdarjung Road, then
to the Maruti Comp1ex: and (iii) the actual orders alleged to have been given
502 SUPREME COURT REPORTS (1980] 3 S.C.R.

.l by A 2 for burning the film in the premises of Maruti Complex which opera-
tion according to thei prosecution V.'as carried out by the approver PW 3,
Khedkar and other witnesses between the 10th a·nd 24th of November 1975.

The Sessions Judge, Delhi convicted V. C. Shukla (A-1) appellant in
Criminal Appeal No. 494179 under section 120B rend with Ss. 409, 435, 411,
...
• 414 and 201 Indian Penal Code and also under section 409· Indian Penal Code
in respect of the positive ptint and negative and other materia-1 of the film
''Kissa Kursi Ka' under section 411 read with S. 109 l.P.C.; under section
414 read with section 109 LP.C.; oo.d under section 201 read with section 109
I.P.C. The appellant, &tnjay Gandhi (A 1) in Criminal Appeal No. 493/79
•
was convicted by the Sessions Judge, Delhi under section 120B read with Ss.
409, 435, 411, 414 and 201, Penal Ccx!e and further convicted under S.. 435, 411,

c 414 and 201 Penal Code in regard to the negative and other matcria.J.s of th& .
'·'.k.
film, as aJso under section 409 read with section 109 of the Penal Code.

Accused No. I was sentenced under s. 120B read with Ss. 409, 435, 411,
414 and 201 to two years rigorous imprisonment; under s. 409 regarding the
negative and other materials to two years rigorous imprisonment and a fine
of Rs. 20,000 and in default further 6 months rigorous imprisonment, under s.
409 regarding the positive print of the film to two years rigorous imprisonment
and a fine of Rs 5000 and in case of default further rigorous imprisonment fer
three months; under s~ 411 read with s. 109 to rigorous imprisonment fot one
year; under s. 414 read with s. 109 to rigorous imprisonlnent for one year;
under s. 201 read with s. 109 to rigorous imprisonment for one year; and
under s. 435 read with s. 109 to rigorous imprisonment for one, year and six
months. Accused No. 2 was sentenced under s. 120 B read with ss. 409, 435,

• 411, 414 and 201 to rigorous imprisonment for two years; under s. 435 to
rigorous imprisonment for one year and six months and a fine of Rs. 10,000 .
and in case of default further rigorous imprisonment for four months; under
s. 411 to rigorous imprisonment for one year; under s. 414 to rigorous imprison-
ment for one year; unde.r s. 201 in regard to the negaotive, etc., to rigorous
imprisonment for one year; under s. 201 in regard to 13 trunks, etc., to rigorous
imprisonment for one year and under s. 409 read with s., 109 to rigorous impri-
sonment for two years. The aforesaid sentences of imprisonment were ordered
' to run concurrently in the case of both the accused.

On being convicted by the Sessions Judge, Delhi, both the accused filed
appeals before the Delhi High Court against their convictions and sentences,
and wet-e released on bail pending the hearing of the appeals. Meanwhile~
the Special Courts Act of 1979' came into force· and by virtue of a declaration
G made under section 7 of the said Act, the appeals stood transferred to the
Supreme Court. J

The appellants raised the following preliminary objections as to the cons-
titutional validity of Sections 5, 7, 9 and 11 of the Act, apart from the plea
that their conviction and sentence were not based on any evidence, legal or
otberwile.
R
A. Even having regard to the principles laid down the Supreme Court in the
Reference case, the Act fails to pass the tests laid down for a valid classifica-
V. C. SHUKLA v. DELHI ADMN. 503

tion under Art. 14. 1he decision given in the Reference case upheld the Bill A
and rejected the challenge that the Bill violated Art. 14 main1y on the ground
that the Bill sought to put a certa'in class of persons, namely, persons holding
high public or political offices who had committed offences only during the
period of E1nergency. In other \vords, the constitutionality of the Bill was
upheld on the ground that the legislation was confined to select offences com-
mitted by a particular class of persons during the Emergency period. The
impugned Act transgressed the li1nits imposed by the judgment in the Refer- B
• ence ca.."e by bringing within its fold offences rommitted prior and subsequent
to the Emergency and thus was in direct conflict with the opinion of this Court
rendered in the Reference case. In other words this Court struck down that
part of the Bill \Vhicb related to the period bet\veen February and June 1975
on the ground that persons having committed offences during that period
could not be clubbed \vith those who had committed offences during the period
of Emergency. Thus the Act, by clubbing together persons accused of offences C
committed during the Emergency with those alleged to be guilty of crimes per.
taining to periods before and after the Emergency (i.e. by dealing with offences
committed at any point of time whatsoever), has violated the guarantee under
Art. 14 and the. classification .made by the Act is in direct contravention of
the opinion given by this Court in the Reference Case.

B. Even if the classification was valid, as the procedure prescribed by the D
Act is extremely harsh and prejudicial to the accused, Articles 14 and 21 are
clearly viol~ted.
(a) Section 7 depdves a valuable right of af)peal;
(b) Section 11 (I) takes away the valuabL.! right of revision against in·
terlocutory orders; E
(c) Section 9(3) of the Act prescribes the procedure for the trial of
\\'arrant cases before the Magistrate in Sections 238 to 243 a.ad
248 Crl. P.C., while treating the special Court as Court of Sessions.

C. Assuming the classification of persons holding high public or political
offices to be 1ustified, it suffers from a serious infirmity in that neither the terms
"high public or political office" has been defined nor have the offences been deli~ F
vered or defined so as to make the prosecution of such offenders a practical .
reality.

D. Even the nature and character of the offences have not been defined in the
Act which introduces an element of vagueness in the classification.

E. Parliament was not competent to pass a special Act and create Special G
• Courts for a particular set of offenders .
' F. The Act seeks to change the situs of the Court and virtually abrogate9
"Section 181 of the Code of Criminal Procedure.

G. The Act creates an inviQious distinction in as much as persons holding
high public or political offices Would have the benefit of trial by such an experi 4

enced officer as a sitting judge of a High Court. while the appellants have been B
deprived of (bat right and were tried by a Special Judge who was only a Sessions
Judge.
504 SUPREME COURT REPORTS (1980] 3 S.C.R.

A H. Section 5 of the Act suffers from several constitutional and legal infirmi~
ties, namely, (a) Section 5 (1) suffers from the vice of excessive delegation of
powers so as to violate Article 14 in as much as the discretion conferred on the
Central Government is absolute, naked and arbitrary and is clearly discriminatory
as it is open to the Central Government to pick and choose persons to n1ake
declarations in respect of them while excluding others.
(b) The issuance of a declaration ilnder section 5 (1) of the Act depends
B purely on the subjective· satisfaction of the Central Governn1ent and under sub~
section (2) of section 5 such a declaration cannot be called into question by
any court so that there would be an element of inherent bias or malice• ! in
•
an order which the Central Government may pass, for prosecuting persons who
are political opponents and that the section is therefore invalid.
(c) As the Central Government in a democracy consists of the political party
c which has the· majority in Parliament, declarations under section 5 ( 1) Of the
Act could be used as an engine· of oppression against members of parties who
are opposed to !he ideologies of the ruling party.
(d) the provisions about declaration contained in Section 5(1) are violative
of the principle of natural justice in as much as they do not provide for any
bearing being given to the accused before a declaration is made.
D (e) in an instant case, the declaration dated June 22, 1979 made under sec--
tion 5( I) of the Act per se shows that it had not resulted from any real appli-
cation of the mind by the Central Government. Once the prosecution of the
appellants had culminated in a conviction and an appeal therefrom there was
no question of the existence of any "prima facie case" and that the use of such
an expression could be intelligible only if the accused were facing criminal pr~
ceedings which had not culminated in a conviction; and
E
(f) the declaration made under section 5 of the Act is non est beca\ise it
has not been laid before each House of Parliament as required by section 13
of the Act. ·
J. The appellant not having held any high public or political office ha• been
drawn into this case by virtue of a declaration and has therefore been singled
p out for a discriminatory treatment.
K. Section 5(1) of the Act has no application to the fact,; of the present case
because under section 5( 1) a declaration has to be made on the basis of the
source indicated in the section, namely, inquiries conducted under the Commis-
sions of Inquiry Act or investigations which become otiose and would have re-
l~ance only if the appellant had not been convicted. •
G L Conviction being a finding of1: guilt cannot be said to fall within the situa-
tion contemplated by section 5 ( 1) of the Act. Section 6 is an extension of the
scheme contained in section 5, the former does not overrule the entire code
of Criminal Procedure but in fact takes in only those cases which are pending
at the trial stage when the declaration is made. Once the case ends in a. con-
viction, section 5 spends itself out and there is no room for the application of
section 5.
H M. Section 7 would not apply to this case because its language embraces only
those appeals which arise out of a prosecution which itself is pending at the
time when a declaration is made.
V. C. SHUKLA v. DELHI ADMN. 505

N. By providing in section 7 for an automatic transfer of appeals from the A
High Court to the Supreme Court, the Legislature has exercised a judicial power
which is vested in the Supreme Court alone under s~tion 406 of the Code of
Criminal Procedure and that the section is invalid as it conflicts with section
406 Cr!. P .C.

Allowing the appeals, the Court
B
HELD: (Regarding Constitutional validity of the Act)
• 1. In a diverse. society and a large democracy such as ours when: lhe ex·
panding needs of the nation change with the temper of the times, it is extremely
difficult for any legislature to make laws applicable to all persons alike. Some
amount of classification is, therefore, necessary to administer various spheres of
the activities of the State. [522 D-Ei
c
2. It is well settled that in applying Art. 14 mathematical precision or nicety
or perfect equaRimity are not required. Similarity rather than identity of treat-
ment is enough. The court<; should not make a doctrinaire approach in cons-
truing Art. 14 so as to destroi or frustrate any beneficial legislation. What
Art. 14 prohibits is hostile discrimination and not reasonable classification for
the purpose of legislation. Furthermore, the Legislature which is in the best
position to understand the needs and requirements of the people must be given D
sufficient latitude for making selection or differentiation and so long as such a
selection is not arbitrary and has a rational basis having regard to the object of
the Act, Art. 14 would not be attracted. That is why this Court has laid down
that presumption is always in favour of the constitutionality of an enactment
and the onus lies upofi the person who attacks the statute to fihow that there has
been an infraction of the constitutional concept of equality. It has also been
held that in order to sustain the presumption of constitutionality, the Court is E
entitled to take into consideration matters of common knowledge, common re·-
port, the history of the times and all other facts which may be existing at the
time of the legislation. Similarly, it cannot be presumed that the administra-
tion of a particular law would be done with an "evil eye and an unequaJ hand".
Finally, any person invoking Art. 14 of the C.Onstitution must show that there
has been discrimination against a person who is similarly situate or equally cir·
cumstanced. [522 E-H, 523 Al P'
State cif U.P. v. Deoman Upadhyaya, [1961] 1 SCR 14, followed.
3. The classical tests laid down for the application of Art. 14 are the follow-
ing:
•
1. The classification must be founded on an intelligible dif[erentia which
distinguishes persons who are placed in a group fro.ni others who are G
• left out of the group .
2. Such differentiation must have a rational relation to the object sought
to be achieved by the Act.
3. There must b~ a nexus between the differentiation which is the basis
of the classification and the object of the Act. [523 D-F]
B
4. It cannot be gainsaid that this Court while dealing with the Reference
case was not at all concerned with the provisions of the Act which is of much
506 SUPREME COURT REPORTS [1980] 3 S.C.R.

A wider application than the Bill considered by the Court in the Reference. It is
no doubt true that the Bill contained provisions for punishing only those offen~
ders who, were accused of offences committed during a particular period, namely,
the period of Emergency. It is also true that the period of Emergency was ·an
extraordinary one in the history of our country a.nd its features have been spelt
out in the preamble of the Bill as also in the judgment given by this Court in
the aforesaid case. But that by itself does not debar Parliament from passing
B a permanent Act to deal with a specified class of persons who occupy high public
or politica·l offices (\vhich are offices of trust) and misuse or abuse: the,m. It
cannot be doubted that for the estabJishment and continuance. of a Parliamentary
democracy and to secure efficiency and purity of administration it is necessary
that when such persons commit serious abuse of power and. are guilty of a
breach of the trust reposed in them, they would form a special class of offen..
ders. [525 F-H, 526 A]
c 5. That Purity of life is a desired goal at all times itself is a ·sufficient justi-
fication for the classification made by the Act which widens its scope to include
offenders of a particular type, whether before, during or after the Emergency.
In fact, such persons would undoubtedly form a special class of offenders which
would justify the legislative measure singling them out for an expeditious trial.
To hold otherwise would be to say that persons bearing the aforesaid attributes
would be immune from prosecution unqer any Special Act. Passing of such a
D Special Act is within the Legislative competence of Parliament.
[526 D-E, 527 G-H, 528 BJ
6. The Act does not suffer from any infirmity and the circumstance that it
applies to offences committed at any time by a particular set of persons pos~
sessing special characteristics does not render it unconstitutional; for, when it
puts into a class a particular set of personS having special characteristics which
distinguish them from others who are left out of that class and who are to be
tried under the ordinary law,. the classification is eminently reasonable. The
classification made has a reasonable nexus with the object sought to be achieved.
Separate grouping of holders of high offices for purposes of expedition~ crimi..
nal action to be taken by superior courts is a reasonable· and v<i.Jid classification
because it enhances confidence in the rule of law, strengthens the democratic
system and ensures purity of public life and political conduct.
F [528 E-G, 529 G-H, 531) A]
7. The opinion of the Supreme Court in Re. Special Act, in no way amount- ~··
ed to disapproval .or condemnation of a permanent law in futuro bringing within
its scope all holders of high public or political office. [531) G-H]
The Bill was chaJTenged before the1 Supreme Court on the touch stone of Art. •
14 on several groups. In the first place, it was argued that no rational basis
G for separately classifying Emergency offenders existed. The second ground of
challenge was that assuming that rthere was a valid classification, the same 'Was •
bad because it suffered from the vice of under·inclusion inasmuch as holders of
high public or political offices were 'ieft out. This Court, however, repe11ed the
argument of rational basis on the ground that the Emergency period, because
of its special characteristics, afforded adequate basis for separate classificatien
of Emergency offences. The Cotirt was not at all at that time concerned ex-
ff pressly with the question as to whether classification of high public or political
dignitaries without reference to any period during which they were alleged to
have committed offences would be violative of Art. 14 of the Constitution. On
V. C. SHUKLA V. DELHI ADMN. 507
\
the other hand, this Court made dear obse!fvations that an Act p1oviding for A
such a classification would be not only valid but also highly welcome. It is
trUe that the provision Iegarding a particular period before the Emergency was
then struck down but that was so because the Bill was confined to offences com-
mitted only during the period of Emergenc)r and the inclusion of another period
meant bad classification for the reason that the pe1 iod last n1entioned could
nOt be distinguished from either pre-or post-Emergency periods on any reason-
able basis. This view of the Court could not be interpreted as laying down a B
• la\\' of universal application th&t no Special Act on a permanent basis classifying
offenders possessing particulai: characteristics or attributes and providiilg for
their prosecution under a sp~cial procedure would be invalid or violative of
Art. 14. [530 A-G]

8. 'fhe expression "high public or political offices" is of well kno\vn signi-
ficance and bears a clear connotation which admits of no vagueness or ambi- c
guity. Persons holding high public or political offices mean persons holding
.top positions wielding large powers. [531 C-D, F]

Political office is an office which forms part of a Political Department of
the Government or the Political Executive. This, therefore, clearly includes
Cabinet Ministers, Ministers, Deputy Ministers ;lnd Parliamentary Secretaries
who are running the Department formulating policies and are responsible to D
the Parliament. The word 'high' is indication of a top position and enabling
the holders thereof to take major poiicy decisions. Thus, the term 'high public
or p0litical office' used in the Act contemplates only a speci'al class of officers
-0r politicians who may be categorised as follows : -

1. Officials wielding extraordinary powers entitling them to take major
policy decisions and holding positions of trust and answerable and E
accountable for their wrongs.
2. Persons responsible for giving to the State a clean, stable and honest
administration;
3. Persons occupying a very elevated status in whose hands lies the
destiny <>f the nation. [534 C-E]
p
The rationale behind, the classification of persons possessing the aforesaid
,characteristics is that they wield wide powers which, if exercised improperly by
reason of corruption, nepotism or breach of trust, may mar or adversely mould
the future of the country and tarnish its image. It cannot be said, therefore,
with any conviction that persons who possess special attributes could be equated
with ordinary criminals who have neither the power nor the resources to com-
mit offences of the type described above. The term 'persons holding high pub- G
]ic or political offices~ is self-explanatory and admits of no difficulty and that
mere absence of definition of the expression would not vitiate the classification
made by the Act. Such persons are· in a position to take major decisions re-
garding social, economic, fii:tancial aspects of the life of the community and
other far-reaching decisions On the· home front as also regarding external affairs
and if their actions are tainted by breach of trust, corruption or other extraneous
consideration, they would damage the interest<; of the country. It is, therefore, H
not only proper but essential to bring such offenders to book at the earliest
·poSFible opportunity. [534 F-H, 535 Al
508 SUPREME COURT REPORTS [1980] J S.C.R.

A 9. Clause 4 of the preamble to the Special Courts Act clearly indicates the
nature of the oll'ences that would be tried under the Act. [535 BJ
The \Vords 'power being a Trust' clearly indicate that any act which amounts.
to a breach of the trust or of the powers conferred on -the person concerned
would be an offence triable nnder the Act. Clause ( 4) is wide enough to in-
clude any offence committed by holders of high public or political offices which
amounts to breach of trust or for which they are accountable in law and does
B not leave any room for doubt. Section 5 which confers powers on the Central
Goverµment to make a declaration clearly refers tO the guidelines laid down in
the preambie and no Central Government would evei think of prosecuting hol-
•
ders of high public or political offices for petty offences. [535 o-.GJ
10. Sections 7 and 11 of the Special Courts Act are within the legislative
competence of the Parliament. That is to say Parliament has the competence:
C to provide for the creation of Special Courts and to confer jurisdiction on the
Supreme Court by providing that an appeal shall lie as of right from any judg-
ment or order of Special Court to the Supreme COUrt both on fact and on law.
[536 A-DJ
In re. Special Courts Bill [1979] 2 SCR 476; applied.
11. The Act neither seeks to change the situs of the Court nor virtually
D abrogates Section 181 of the Code of Criminal Procedure. [536 E]
In re. Special Court Bill, (1979] 3 SCR; followed.
12. The question of the appellants beiag tried by the Special Judge
appointed under the Special Courts Act could not arise because the said
Special Court did not exist at all even whet the trial of the appellant was
concluded. The First Information report against the appellants was lodged
E on 13th April 1977 and the chargesheet was submitted before the Special
Judge who convicted the appellants by his order dated February 27, 1979. The
Act, however, came into force on Ma·y 16, 1979, that is to say, three months
after the conViction and about two months afte"r the appellants bad filed their
appeals before the High Court. The existence of such fortuitous circums-
tances cannot attract Article 14. [536 G-H, 537 A-Bl
Khandige Sham Bhatt and Ors. v. The Agricultural Income Tax (l{ficer,
' (1963] 3 SCR 809; Dantuluri Ram Raiu and Ors, v. State of Andhra Pradesh
and Anr., [1972] l SCR 421; applied.
13. Section 5(1) does not suffer from the vice of excessive delegation of
powers so as to violate Article 14. No unguided or uncanalised power has
been conferred on the Central Government. A basic condition imposed on,
the Cettitral Government is that there must be a proper application of mind
G regarding the existence of prima facie evidence of the commission of an
offence. Secondly, the discretion has to be exercised in accordance with the"
guidelines contained in the preamble. The various clauses of the preamble lay
down clear guidelines and provide sufficient safe-guards against any abuse of
power. Thirdly, clause ( 4) of the· preamble' clearly lays down that the power
under s. 5 is exercisable only after the Commission of an offence by the
holder of a high public or political office: ha6 been disclosed as a result of an
H inquiry conducted under the Commissions of Inquiry Act or of an investiga-
tion conducted by the Government through its agencies. It is well settled:
that discretionary power is not the same thing as power to discriminate nor
V. C. SHUKLA V. DELHI ADMN. 509

can the constitutional validity of a law ~ tested on the assumption that wherei A
a discretion&ry power is conferred on a high authority, the same may or
would be exercised in a discriminatory manner. [538 &H, 539 A]
The pO\·\rer conferred on the Central Government is controlled by the
guidelines contained in the preamble which by virtue of the provisions. of
s. 5(1) hecomes a part of that section. As th& po\\•er has been conferred on
the Central Government \Vhich is to make a declaration in accordance with
the conditions laid down in s. 5 ( 1) and, therefore, in conformity with the B
• guidelines mentioned in the preamble, the attack based on discrimination is
unfounded. [541 B-C]
Dr. N. B. Khare v. The State of Delhi, [1950] SCR 519, Kathi Raning
Rawat v. The State of Saurashtra, [1952] SCR 435; Matajog Dubey v. H. C.
Bhari, [1955] 2 SCR 925 In Re. The Kera/a Education Bl'll, 1957, [1959] SCR
995 Jyoti Par.shad v. The Administrator for the Union T~rritory of Delhi, c
[1968] 2 SCR 125; Moti Ram Dekha etc. v. General Manager, N.E.F., R7iil...
ways, Maligaon, Panda etc. [1964] 5 SCR 683; V. C. Shukla v. The State
through C.B.I .. f19801 I SCR 380; followed.
14. The power of the Central Go.-ernment to issue a declaration is a
statutory power circumscribed by certain conditions. Furthermore, as the
power is vested in a very high authority, it cannot be assumed that it is likely D
to be abused. On the other hand, where the power is conferred on such a
high authority as the Central Government, the presumption will be that the
·power will be exercised in a bona fide manner a.nd according to law. [541 D·-F]
Chinta Lingam and Ors. v. Governmt.'nt of India and Ors., [1971] 2 SCR
871; Budhan Chaudhary and Ors. v. The State of Bihar, [1955] I SCR 1045;
referred to. ·
E
15. The contention that declarations under s. 5(1) of the Act could be1
used as a.n engine of oppression against members of rarties who are opposed
to the ideologies of the ruling party is one arising out of fear and mistrust
which. if accepted would invalidate practically all Jaws of the land; for, then
even a prosecution under the ordinary law may be considered as politically
motivated, which is absurd. Furtheirmore, prejudice. malice or taint is not a
matter for presumption in the absence of evidence supporting it. It is well p
settled that burden lies on the parties allegingi bias or malice to prove its
existence. and if malice or bias is proved in a particular case, the courts
would strike down the act vitiated by it, in exercise of its powers under
Articles 226, 227 or 136. [542 A·D]
' In Re. Special Courts Bill, [1979] 2 SCR 476 referred to.
16. At the stage when the declaration is sought to 6e made there is no list G
pending no'r has any prosecution been 1aunched against the accused. Section 5
deals only with the decision taken by the Central Goveirnment to prosecute and
until th<)t decision is notified, the prosecution does not start, and the questioit
of Ml accused being heard at that stage~ therefore, does not arise at all.
[542 F-GJ
Cozons v. N•rth Devon Hospital Management Committee and Anr., [1966)
2 Q.B. 330: quoted with approval. B
17. Undei' section 5(1) of the Act the Government has to be satisfied on
two counts bef1.. re it could issue a decla.ration. It must be satisfied in the first
510 SUPREME COURT REPORTS [1980] 3 S.C.R.

A instance that there is prima facie ervidence of the comm1ss1on of au offence.
Secondly, it must form the opinion in accordance \Vith the. guidelines contained
in the preamble that such offence ought to be dealt with· under the Act. l'he
condition of the existence of prima facie evidence. is fulfilled in the case of the
pre.Bent declaration though the trial in the first Couit had ended in a convic-
tion and an appeal therefrom, the reason being that if conviction is construed ..
as evidence of the existence of something more than a· mere pri1na facie. case,
B that would not mean that a- prin1a facie case cease to exist. That a prima
facie case must be found to exist is only the mininuon requirement for the
satisfaction of the Central Government and it would be doubly made out if
•
the evidence available is stronger than is needed to make out only a prinia
facie case. A conviction of an accused person cannot mean that there is. no
prilna facie evidence against him. AH that it spells out is that not only: a
prima facie case is made out against him but that the evidence available is
c even stronger and is sufficient for a conviction. However, as the Government,
while acting under the section, is to satisfy itself only with the existence of
pri1na facie evidence, the assertion by it in the declaration that such evidence
was available to its satisfaction cannot, by any stretch of imagination, be held
to be1 inapplicable to a case in which a conviction: has been: recorded. In this
view of the matter the use of the expression 'prin1a facic' evidence in the
decJaration is fully justified even though the tri<!!l had ended. in a conviction
D which was under appeal on the· date of the declaration. [544 A-G}

A perusal of the declaration reveals that it gives the history of the case from
beginning to end which demonstra.te3 that the Central Government was fully
awMe Of the various stages through \vhich the trial of the appc1lants passed.
Thus, the formation of the opinion by the Government of the existence of a
pritna facie case cannot be held to be perfunctory or ilJusory. It has not bee:ti
shown that the dedai:ation was in any way irrational or mala fide or based on
extraneous considerations. [546 F·G]

18. The provisions of Section 13 of the Special Courts Act are purely
directory and not mandatory so that if the conditions\ mentioned in i11 are not
fulfilled the declaratiori, would not be vitiated. It is to be noted that the section
does not say that until a declaration. is placed before the two Houses cf Parlia~
:F ment it shaH not be dee1ned to be effective, nor does the1 section intend that ally
consequences would result from its non-compliance. On a true interpretatiofi'
of section 13 of the Act, it is. clear that it is a case of a c;irnple laying of the
declaration before each House of Parliament. [547 A-B, 548 Bl

l1.1/s Atlas Cycle Industries Ltd. o.nd Ors. v. State of flaryana, [1979] 2 SCC
196; applied.
G 19. The doctrine of the violation of basic. structure of the Constitution or its
fundamental features applies not to the provisions of a law made by a State
legislature or Parliament but comes into operation: \vb.ere an amendment made
in the Constitution itself is said to affect its ba~ic features like fundamental
rights enshrined under Articles 14, 19. 31 or the power of amendn1ent of the
Constitution under Art. 368 and so on. Thei doctrine has no application to the
provisions of a Central or State lav,; because if the statute is violative of any
u provision of the Constitution it can be struck do\vn on that ground and it is not
necessary to enter into the: question of basic structure: of the Constitution at all.
[548 C-EJ
V. C. SHUKLA V. DELHI ADMN. 511

20. It is true that section 6 of the Act does not contemplate a prosecution At
which is relatable to the declaration under section 5 but that'does not debar
the application of section 5 to other stages of a criminal case; especially thoSe
specifically dealt with under section 7 of the Act which fully covers the· situltion
in hand. The limited field in1 which section 6 operates does not therefore
exhaust the consequences flowing from the issuance of a declaration undetr
section 5 of the Act. [549 A·B]
8
· 21. The words "whether pending or disposed of" a·re significant an<l qualify
the immediately preceding clause "a prosecution in respect of such offences".
The legislature has thus taken care to expressly provide that an appeal or revi-
sion would be covered by section 7 and transferable to the Supreme Court for
disposal if it is directed against a judgment or order made in prosecution which
is either pending or has bcenr disposed of, the only other requirement' of the
section being that suoh appea·l or revision must itself be pending at the date of
the declaration. Therefore to interpret section 7 in such a way a3 its applica-
c
bility is limited to appeals or revisions ari5ing from prosecutions pending at the
trial stage at the date of the relevant declara.tions is possible only if the words
"or dispo~d of' are treated as absent from section-a course which is not open
to this Court in vieiw of the express language used. [549 E-GJ

22. There is no question of the exercise of any judicial power by the legis- D
lature in enacting section 7 of the Act which covers a well known legislative
process. By enacting section 7, Parliament has merely provided a new forum
for the appeals which were pending inthe High Court and in respect -of which
a valid declaration, fully consistent with the provisions ·of the Act, was made-
a course which involved no interference with the judicial functions of the court
and was fully open to the legislature. [550 A, E-F]
E
Indira Nehru Gandhi v. Sri Raj Narain, [19'76] 2 SCR 347; distinguished.
23. Since the classification made by the Act complies with the, dual test laid
down by the Supreme Court and . therefore held to bei a reasonable classifications,
Article 14 would not be attracted even if the procedure is held to be bafsher
than that available undett" the ordinary law. Apart from that, the procedure
prescribed by the Act is not harsh or onerous but is more liberal and aJv;inta-
geous to the accused who is assured of an expeditious and fair trial there.arider. F
[550 G-H, 551 A]
24. An appeal being a creature of statute, an accused has no inherent right
to appeal to a particular tribunal. The legislature may choose any tribunal for
the purpose Of giving a right of appeal. Moreover. an appea.l to the High
Court is less advantageoos than an appeal- to the Supreme Court for the follow-
ing reason : G
"The right of appeal given to an accused from the order of a Session
Judge or Special Judge to the High Court is not totally unrestricted.
Section 384 of the Code of Criminal Procedure empowers an Appellate
Court to dismi~ an appeal sun1marily if it is satisfied that there iS' no
sufficient ground for interference.''

While an appeal to the High Court under the Code of Criminal Procedure is B
attooded witb the risk of being summarily dismissed under section 384, an
appeal under seotion II (1) of the Act wbk:h runs tbns :
512 SUPREME COURT REPORTS [1980] 3 s.c.R.

"11. (1) Notwithstanding anything in the Code an appeal shall lie
as of right from any judgment sentence or order, not being interlocutory
order, of a Special Court to the Supre.;me Court both on facts and on
law."
is not so.

An appeal under s. 11( I) lies as of right and both on facts and on law.
B Thus, the right conferred on a convict by s. 11 ( 1) is wider and less restricted
than the right of appeal given by the Code of Criminal Procedure.
(2) If the appeal is filed before the Supreme Court or is transferred
thereto, the accused becomes entitled to a hearing of his case by
the highest court in the country both on facts and on la.w and thus
gets a far greater advantage than a right to move the Court for
grant of special leave \Vhich may or may not be granted, it being a
c matter of discretion to be exercised by the Supreme Court.

Therefore the procedure regarding the appeals under the Act is not harsher
than that prescribed by the Code of Criminal Procedure.
[552 i>·H, 553 E-H, 554 CJ
Syed Quasirn Razvi v. The State of Hyderabad and Ors. [19531 SCR 589;
D applied.
25. Even the Code of Criminal Procedure does not provide· for any revision
against an interlocutory order. Section 397(2) of the Criminal Procedure
Code expressly bars revision against interlocutory orders. Inasmuch as
there is no right of revision either under the Code of Criminal Procedure or
under the ACt, it cannot be said that section 11(1) of the Act creates a
definite procedural disadvantage to the accused. In fact under the Act, the
E Special Court is presided over by no less a person who is a sitting judge .of
a High Court and the possibility of miscarriage of ju~tice is reduced to the
barest minimum. [555 C·D]
V. C. Shukla v. The State, through C.B.l., [1980] I SCR 380; lagannath
Sonu Parker v. State of Maharashtra, [1963] Suppl. I SCR 573; followed.
26. The procedure for trial of warrant cases gives a full opportuBity to
the accused to participate in the trial at all its stages and to rebut the case
for the prosecution in every possible manner and it has not been pointed
out how the adoption thereof for trials under the Act would be to the
disadvantage of the accused. There.fore the provisions of sections 9(1) a-a.cl (3)
of the Act cannot be said to be harsh. [556 E-G]
State of West Bengal v. Anwal Ali Sarkar, [1952] SCR 284 explained
'
G and distinguished.
27. None of the sections of the Act are violative of Article 14 or Arti-
cle 21 or any other provision of the Constitution. The classification made
in the Act is valid and reasonable a.nd bas a rational nexus with the object
of the Act and that the procedure prescribed is fair and advantageous to
the accused. [561 E-F]
H 28. The appellant in Cr!. Appeal 493 /79 has not been singled out for
a discriminatory treatment. It is true that he has never been the holder
of any high public or political office but the first clause of the preamble
V. C. SHUKLA V. DELHI ADMN. 513

clearly includes within its ambit not only persons holding high public or _.. A
political offices but also others. Section 8 thus incorporates the well known
concept of joint trial of accused persons in respect of offences forming part
of th~ same transaction. [551 C-E]

Further Held (on merits) :
29. Jn order to prove a criminal conspiracy which is punishable under
-section 120B of the Indian Penal Code, there must be direct or circlllll&- B
tantial evidence to show that there was an agreement between two or more
1

• persons to commit an offence. This clearly envisages that there must be a
meeting of the n1inds resulting in an ultirnate decision taken by the conspi-
rators regarding the ommission of an offence. [565 H, 566 J\]

30. It is true that in most cases, ·it will be difficult to get direct evidence
of an agreement to conspire but a conspiracy can be inferred even from C
circumstances giving rise to a conclusive or irresistible inference of an
·agreement two or more persons to con1mit an olTence. [566 A-B]

In the instant case, there is no acceptable evidence connecting either of
the appelJants with the existence of any conspiracy. Even taking the main
part of the prosecution case at their face value, no connection has been
proved with the destruction of the film 'Kissa. Kursi Ka' and the two appel- D
_lants. The evidence produced by the prosecution falls short of the
standard of proof required in a, criminal case. The prosecution failed to
prove either there was any existence of any conspiracy between A· I and
A 2 to destroy the film 'Kissa Kursi Ka· by burning it or to commit any
other offence in respect of the film. There is evidence to show that there
was .any meeting of minds between A 1 and A 2. Even on the first two
parts of the prosecution case, the allegation of the prosecution that the E
positive prints were removed at the instance or to the knowledge of A 1 m:-
1hat the negatives and other materials of the film were sent for by A 1 and
kept in his personal custody has not been proved. The mere fact that A I
decided to show the film and refused certification for public exhibition and
passed orders for seizure of the film and its tranfer to the custody of the
Ministry of Information does not disclose any offence. The decision to ban
the .film was not taken by A I secretly or clandestinely but after a full F
fledged discussion in the coordination Committee meeting attended by senior
officers of various ministries as deposed by Prasad PW 63. Further that
part of the case which relates to the burning of film material rests solely on
the uncorroborated testimony of the approver and is negatived insofar as
the role therein of A I is concerned. [566 C-D. 583 F-H, 584 A-BJ
(i) TUI 9-7-75 i.e. the date by which the notice to show cause why certi- G
fication of the film 'Kissa Kursi Ka' was made returnable, neither A 1
nor A. 2 was anywhere in the picture. The facts disclosed by the prosecu·
tion ex facie show that objection to certification of the film had been taken
at the very initial stage and the ultimate order was passed during the time
when A I, Mr. Shukla had taken over as Minister, which was merely the
final scene of a drama long in process; [564 C-EJ
H
(ii) Even at the stage of proposed exhibition of the film to the Judges
of the Supreme Court who constituted the Bench and heard the Special Leave
Petition i.e. 17-11-75 there was absolutely no evidence to show that there
514 SUPREME COURT REPORTS [1980] 3 S.C.R..

A was any meeting of minds of A 1 and A 2 nor is there any material to indi-
cate that A 2 played any; role in the burning of the film. The decision to
ban the film was taken by the Ministry headed by A 1, on the merits of the
case. No motive is attributable to A 1 at this stage· because even the Chair-
man of the Board, PW 8 Mr. Thapa who was an independent witness wa9
of the view that the film should not be certificated rfor public exhibition..
Similarly, the steps taken by the. officers of the Ministry in persuance of the ,.
B filn1 at Bombay a11d its transfer to Delhi ¥/as in the nature of routine to see
that the decision taken by the Government was implemented. As soon as
the Ministry received the orders of the Supreme Court for screening the film
on 17-11-1975, immediate steps were taken to comply with the orders of •
the Court. Admittedly behveen 17,th November 1975 to 23rd November
1975, .1\ 2 was either away to Hyderabad or Sikkim as proved by DW 3.
This negatives the story of the approver connecting A 2 with the burning of
C the film. [565 E-H, 581 C-D. 582 A]
.A. lot of evidence has been produced by the prosecution to show :
(a) that the positive print of the film found its way into the luggage
compartment of the car in which A 1 then travelled to the Prime
Minister's house where the print was unloaded by someone in
the absence of A 1; and
D (b) that the negatives and other material relating to the film were
taken in a tempo or two to the Prime Minister's residence and
from there to the Maruti Complex where they were stored before
their destruction. [584 B·D]
But the connection of A 1 or A 2 therewith remains unproved. Had these
factors provided circumstantial evidence on the basis of which alone the
F, charge against either A I or A 2 could be held established it would have been
necessary for the Court to sift the evidence produced in sui)port thereof. But
that is definitely not the case, for, if either or both of the factors are proved,
the inference of guilt of either A 1 or A 2 does not necessarily follow. For
circumstantial evidence to furnish evidence of guilt it has to be such as it
cannot be explained on any other reasonable hypothesis except the guilt or-
the accused which is not the ca-5e here because appellants A 1 and A 2 could
JP not be said to be the only persons interested in the destruction of the film
if it was as abnoxious to the then Prime1 Minister or as critical of the function~
ing of the then Union Government as the prosecution would have the Court
••·
believe. The film and all the material relating to it no doubt appear to have
vanished into thin air but then neither A 1 nor A 2 can be held responsible
therefor, in the absence of proof in that behalf proof which would exclude all
reasonable doubt. [594 D·G]
G (iii) A mere identification by a witness of a person in the Court for the
first time who was not known: to the witness and who had only caught a'. glimpse:
of the person; long time before is· valueless, in the absence of the operative
witness being tested by a pretviously held Test Identification does not exclude·
possibility of mistakes in identification. [576 B-D]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
B 492. 493 and 494 of 1979.
Appeals under section 7 of tbe Special Courts Act, 1979 on trans-
fer from the Delhi High Court at New Delhi from the Judgment an<l
v. c. SHUKLA v. DELill ADMN. (Fazal Ali, !.) 515

Order dated 27-2-1979 of the Selll'lions Court at Delhi in Sessions A
Case No. 340/1978.
!. S. Wasu, M. L. Nanda and M. N. Shroff for the Appell~nt in
Crl. A. 492/79.
K. L. Arora, K. G. Bhagat, Harish Gulati, Madan Bhatia and
.. D. Goburdhan for the Appellant in Cr!. A. 493/79. a
P. R. Mridul, Rajinder Singh, 0. P. Sharma, R. C. Bhatia: and
Vivek Tankha for the Appellant in Cr!. A. 494/79.
K. L. Arora, K. G. Bhatat, Harish Gulati and D. Gobur(!han; for
·• the Respondent No. 1 in Crl. A. 492/79.
Rajinder Singh B. R. Handa and 0. P. Sharma for the Respondent C
No. 2 in Crl. A. 492/79.
Soli !. Sorabjee, Sol. Genl. Ram Jethmalani, Grish Chandra, s.
Markandeya and S. B. Jaisinghani for the Respondent in Cr!. As.
493-494/79.
The following Judgments were delivered D
FAZAL Au, J. These two criminal appeals are directed against
a judgment dated 27th February 1979 of the Sessions Judge, Delhi
by which the accused (hereinafter referred to as the appellants) have
been convicted under various sections of the Penal Code and award-
ed sentenC'os of various terms of imprisonment not e11;ceeding two E
years (which have been ordered to run concurrently) in addition to
fines.
Both the appeals were originally filed before the Delhi High Court
and were admitt>~d by ii on the 21st March 1979 when the sentences
of the appellants were suspended and they were released Qni bail. On
the 17th May. 1979, the State also filed an appeal to Jhe Delhi High
Court for enhancement of the sentences. The Special Courts Act
(No. 22 of 1979 and hereinafter to be referred to as the 'Act') was
passed by Parliament and received the assent of the President on
16th May 1979. On the 27th June 1979, the Central Government
made a declaration under s.5 (1) of the Act as a consequence of G
which the appeals stood transferred to this Court.
The appellants have raised a number of preliminary objections
relating to the constitutional validity of the Act and various provisions
thereof on several grounds includihg the contravention of Articles 14
and 21 of the Constitution of India. Alternatively, it was argued
that some of th~ provisions of the Act did not at all apply to the H
appellants and the transfer of the appeals from the High Court to
13-289SCl/80
516 SUPREME COURT REPORTS [1980] 3 S.C.R.

A this Court was not legal. The State has appeared through Shri Soli
J. Sorabjee who )las countered all the objections raised by the appel-
lants and has submitted that the Act is a valid piece of legislation
ahd that there is no illegality in the transfer of the appeals from the
High Court to this Court. In v~ew of the nature of the preliminary

B
objections raised by the appellants we decided to dispose them of
before entering into the merit5 of the appeals. After bearing the
.
parties at great length, by an order dated December 5, 1979 we over-
ruled all the said objections and proceeded to hear the appeals on
merits. We now proceed to set out the reasons given for the order
rejecting those objections.
c fn order to understand the arguments advanced by learned coun-
sel for the parties it will be necessary to state o;ortain undisputed facts.
The Act was preceded by a Bill (introduced by a Member of the
Lok Sabha) which was adopted by the Government but in view of
certain Constitutional objections the President made a reference to
this Court for its opinion regarding the validity of the Bill and its
D provisions. The matter was ""ard by a Bench of seven Judges and
i11 its report dated December 1, 1978, this Court upheld the validity
of the Bill generally by a majority of six to one. Certain clauses
of the Bill, however, were held to be violative of Art. 21 of the Cons-
titution. This Court further held that Parliament had legislative
competence to create Special Courts and to provide for appeals
E agai.)lst judgments and orders of such Courts to the Supreme Court.
This Court also upheld the classification provided in clause 4(1) of
the Bill which conferred power on the Central Government to make
a declaration in respect of an offence alleged to have been committed
during the operation of the Proclamation of Emergency dated 25th
F June 1975 by a person who bdd high public or political office in
India. To the extent that the claus•e brought within the purview
of the Act persons who had committed offences between February 27,
1975 and June 25, 1975 it was, however, held to be invalid. Simi-
larly, the provisions of clause 7 of the Bill laying down that a retired
Judge of a High Court could be appointed as a Judge of the Special l
G Court and that this could be done by the Central Govermnent in
consultation with but without the concurrence of the Chief Justice
of India were held to be bad. Furthermore, the Court observed that
the absence of a provision for the transfer of a case from one Special
Court to another affected the fairness of the trial and, therefore, was
violative of Art. 21 of th~ Constitution. Barring these infirmities,
H the constitutional validity of the Bill was upheld by this Court. I!
may be mentioned here that during the course of arguments learned
counsel for the Union gave an exp~ss undertaking tha( the defec!s
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, !.) 517

pointed out in the Bill would be suitably removed so as to bring the A
Bill in accord with the opinion expressed by the Court. Conse-
quently, a fresh Bill was prepared and was introduced in the Lok
Sabha on the 21st February 1979. This Bill incorporated the sugges-
tions of this Court, deleted reference to the period prior to the 25th
.. June 1975 in the preamble, made a provision for transfer of a cas~
from one Special Judge to another by the Supreme Court and pro- B
vided that a Special Court would consist of a sitting Judge of a High
Court nominated by the Central Government with the concurrence of
. the Chief Justice of India. After some debate the Bill was passed
by the Lok Sabha dn the 9th March 1979. It was then sent to the
Rajya Sabha where its various provisions were fully debated and cer-
tain important suggestions were made by the Members of the Rajya
c
Sabha as a result of which the Bill w<is returned by the Rajya Sabha
with certain amendments on 21st March 1979. Thereafter the Gov-
ernment accepted the amendments suwsted by the Rajya Sabha and
incorporated the same in the Bill which was then passed a'nd ultimately
received the assent of the President on 16th May, 1979. D
Some of the substantial changes; which have been incorporated in
the Act may be summarised thus :

The Act is now a permanent Act and does not deal only with
offences committed during the period of Emergency. Secondly, in
the preamble an additional clause has been added to indicate the E
nature of the offences committed by persons holding high public or
political office. Thirdly, it has been provided that a Special Court
would consist of a sitting Judge of a High Court nominated by the
Chief Justice of the High Court concerned with the concurrence of
the Chief Justice of Tndia. Thus, the Government has absolutely no
hand either in the appointment of or any control over the Special
F
Judge. This provision appears to ensure complete independence of
the Special Judge who is to be appointed to decide cases of highly
placed public or political offioors, so that they may have complete
confidence in the Judge who tries !_heir case.

Another special feature of the Act is that the preamble and its G
various clauses are not mev2ly intended to spell out the object of the
Act but contain important .guidelines and essential safeguards and by
· virtue of s. 5 (1) of the Act the clauses of the preamble become a
part of the Act itself.
As the Act has thus assumed a new complexion, it is necessary H
to analyse briefly its scheme before we deal with the contentions
raised by learned counsel for the parties. The heading of the Act
518 SUPREME COURT REPORTS [1980] 3 s.c.R.

A shows that its main object is to provide for the S[J_eedy trial of _a cer-
tain class of offences (emphasi!; ours). There al!e as many as nine
clauses of the preamble which run thus :
"AN ACT

B
to provide for the speedy trial
offences.
of a certain class of ..
( 1) WHEREAS Commissions of Inquiry appointed
under the Commissions of Inquiry Act, 1952 have render-
ed reports disclosing the existence of prima facie evidence
of olfunces committed by persons who held high public
c or political offices in the country and others connected with
the commission of such offences1 during the operation of the
proclamation of Emergency dated the 25th June, 1975,
issued under clause (I) of article 352 of the Constitution;
(2) AND WHEREAS inve& 'igations conducted by the
D Goverqplent through it~ agencies have also disclosed simi-
lar offences committed during the period aforesaid;
(3) AND WHEREAS the offences referred to in the
recitals aforesaid were committed during · the operation of
the said Proclamation of Emergency, during which a grave
emergency_ was clamped on the whole country, civil liberties
E were curtailed to a great extent, important fundamental
rights of the people were suspended, strict censorship was
imposed on the press, judicial powers were severely crip-
pled and the parliamentary democratic system was emascu-
lated;
F ( 4) AND WHEREAS all powers being a trust, and
holders of high public or political offices are accountable
for the exercise Qlf their powers in all cases where Com-
missions of Inquiry appointed under the Commissions of )---
Inquiry Act, 1952 or investigations conducted by Govern-
ment through its agencies disclose offences committed by
G such holders;
( 5) AND WHEREAS it is the constitutional, legal and
moral obligation of the State to prosecute persons involved
in the said offences;
(6) AND WHEREAS the ordinary criminal courts due
H to congestion of work and other reasons· cannot reasonably
be expected to bring those prosecutions to a speedy termi-
nation;
v. c. SHUKLA v. DELHI ADMN. (Fazal AU, J.) 519

(7) AND WHEREAS it is imperative for the efficient A
functioning of parliamentary democracy and the institutions
created by or under the Constitution of India that the com-
mission of offences referred to in the recitals aforesaid
should be judicially determined with the utmost dispatch;
( 8) AND WHEREAS it is necessary for the said pur-
B
' pose to establish additional courts presided over b" sitting
Judges of High Courts;
(9) AND WHEREAS it is expedient to make some
procedural changes whereby avoidable delay in the final
determination of the innocence or guilt of the persons to
be tried is eliminated without interfering with' the right to c
a fnir trial."
(Numbering of the clauses by us to facilitate discus-
sion)
So far as clause ( 1) is concerned it refers to Commissions of
Inquiry and the reports given by them disclosing the existence of D
prima fade evidence oJl offenceS committed by persons holding high
public or political offices in the country and others connected with
the commission of such offences during the operation of the Procla-
mation of Emergency dated June 25, 1975. Clauses (2) and (3)
give the history of the special features of the Emergency and the
result of the investigation conducted by the Gowrnment regarding E
offences committed during the Emergency. Clause ( 4) makes the ·
Act a permanent one. According to this clause, persons holding high
public or political offices are actually trustees in regard to the powers
vested in them and offences committed by them in breach of the
trust or confidence reposed in them would also fall within the ambit
F
of the Act, if either by the Commissions of Inquiry or inwstigations
conducted by the Government such offences are disclosed. Clause
(5) makes it clear that it is the constitutional, legal and moral obli·
gation of the State to prosecute persons involved in the offences men-
tioned in the foregoing clauses. Clauses (6)and(7) deal with the main
object of the Act which is to bring the prosecution of the offenders G
falling within the ambit of the Act to a speedy termination and to
bring about a judici,al determination of the offences said to1 have
been' committed by them with the utmost dispatch. Clause (3) pro-
vides for the establishment of additional courts presided over 'by sit-
ting Judges of High Courts. Clause (9) refers to ceratin procedural
changes brought about by the Act in the provisions of the Code of B
Criminal Procedure and intended to avoid delay in the final determi-
nation of the innocence or guilt of the persons to be tried. To sum
520 SUPREME COURT REPORTS [1980] 3 S.C.R.

up from the object of the various clauses of the preamble it is man,i-
fes_t that particular type of persons, namely, those who are holding
high public or political offices by way of a trust have been put in a
separate class along with those who have committed offences during
the Emergency and who also bear the same characteristics as those
B indicated in clause ( 4). Section 2 of the Act defines "Code", "dec-
laration" and "Special Court" anii the residuary clause ( d) thereof
says that words and expressions not defined in the Act would have
the same meaning as in the Code of Criminal Procedure. Section
3 (1) gi\'.es power to tbs: Central Government to establish an adequate
number of Special Courts by notification in the Official Gazette.
c Section 3(2) enacts that a Special Court shall consist of a sitting Judge
of a High court nominated by the Chie;f Justice thereof with the
concurrence of the Chief Justice of India. Section 4 empowers the
Special Court to take cognizance and try such cases as are instituted
before it or transferred to it in accordance with the manner provided
by the Act. Section 5 (1) is the pivotal provision which lays down
D the conditions under which the Central Governmentj is empowered
to make a declaration which is the starting point of the prosecution
of ;the offenders falling within the ambit of the Act. It may be noticed
that s.5(1) clearly states that the guidelines contained in the preamble
are to be followed by the Central Government in determining whether
an offence is to be dealt with under the Act. .Section 5 (2) provides
E that a declaration made by the Central Government shall not be called
in question in any court. Section 6 provides that on a declaration
made under section 5 (1) in respect of any offence, any prosecution:
in respect of such offence shall ,be instituted only in a special Court
designated by the Central Government and that where a prosecution
is pending in any other court, the same shall stand transferred to the
F
special Court. This would be in derogation of anything contained in
the code of Criminal Procedure. Section 'J deals with the auto- J-
matic transfer to the, Supreme Court of appeals or revisions pending in
any court of appeal or revision at the date of the declaration. Section
8 embodies the well-known provisions of the Code of Criminal Proce-
G dure relating to a joint trial of a number of accused persons who are
charged with the offence ofl abetment or conspiracy. Section 9 ( 1)
provides that the Special Court would follow the procedure prescribed
by the Code for the trial of warrant cases before a Magistrate, that is
to say It makes applicable the provisions of ss. 238 to 243 and 248 of
the Code to trials by a Special Court. Sub-section (3) of s.9 lays
H down that the provisions of the Code of Criminal Procedure shall
apply, in so far as \(hey are not inconsistent with those of the Act,
no proceedings before a Special Court which shall be deemed to' be a
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, l.) 521

Court of Session and would have all the powers thereof, and that a A
person conducting a prosecution before a special Court shall be de:_med
to be a public prosecutor. Sub-secti® ( 4) of s. 9 empowers a Special
Court to pass upon '!!'Y person convicted by it any sentence authorised
by Jaw for the punishment of the offence of which such person Ts con-
victed. Section 10(1) contains a provision for the transfer by the
B
Supreme Court of a case from one Special Co~rt to (another where
such an order is expedient in the ends of justice. In fact, in the
opinion given by this Court on the Presidential Reference this aspect
of the matter was particularly highlighted. Sub-section (2) of s. 10,
however, Jays down the norms under which an application for trans-
fer could be made. Sub-section (3) of s.10 empowers the Supreme c
Court to grant comperisation to any person who has opposed the appli-
cation for thei transfer of a case if the Court finds that such an appli•
cation was frivolous or vexatious. Sectioo 11 (I) prescribes the forum
of an appeal to the Supreme Court against a judgment, order or
sentence passed by a Special Court but excludes1 interlocutory order,
from its ambit. It may be noted that! interlocutory orders have beeu D
excluded from the purview of s. 11 ( 1) so as to eliminate unnecessary
delays in the trial of a case by a Special Court. Even the code' of
Criminal Procedure has barred any revision against an interlocutory
order by virtue of the provisions of s. 397 (2) of the code of Crimi-
nal Procedure, 1973. Sub-section (2) ofl s. 11 provides that no appeal
or revision shall lie to any court from any judgment, sentence or order E
of a Special Court except as provided for under section 11 ( 1) . Sub-
section ( 3) provides the period of limitation for filing an appeal before
the Supreme Court and the proviso thereto confers power on the
Supreme Court to condone any delay if sufficient cause is shown, it
may be noticed here that under s. 11 an appeal to the Supreme Court
from an order of the Special Judge lies as a matter of right. Section1 F
12 empowers the Supi:.eme Court to fran1e rules for carrying out the
purposes of the Act. Section 13 provides that every notification made
under sub-section (1) of s. 3 and every declaration made under sub-
section (1) of S. 5 shall be laid, as soon as may be after it is made,
before each House of Parliament.
G
Thus, by and large, the Act contains almost the same provisions
as were contained in the Bill which was sent to this Court for its
opinion by the President. Clause ( 1) of the Bill is now s.1 ( 1) of
the Act. Clause (2) is now s.3 of the Act. Clause (3) o~ the Bill
is now s.4 of the Act. Clause (4) of ~he Bill is now section 5 of the
Act. Clause (5) of the Bill is now s.6 of the Act. Clause 6 of the H
Bill is now s.7 of the Act. Clause (7) of the Bill is now s.3(2) of
the Act, with an explanation added to it. Clause 8 of the Bill is now
522 SUPREME COURT REPORTS (1980] 3 S.C.R.

A s.8 of the Act. Clause (9) of the Bill is now s.9(1) of the Act with
sub-sections (2)(3) and (4) added to it. Clause (10) of the Bill is
now s.11 ( 1) of the Act. Thus, in so far as the arguments advanced
before this Court in the Reference case are concerned, they are con-
cluded by the decision given thereoo and we do not propose to go
behind the opinion given by this Court in that case or the: reasons
B
thereof with which we are in respectful agreement. Learned counsel
for the appellants having realised the force of this; position, confined •
their arguments to certain points which either did not arise at the
Reference stage or were not argued before the Court and on which
no decisiO'n was given, and in fact, relied on some of the findings
given and the propositions oflaw adumbrated by this Court in the
c Reference case.

The main ground of attack regarding the constitutional validity of
the Act is based on Articles 14 and 21 of the Constitution. Before
dealing with the arguments we might mention certain important princi-
ples laid down by this Court in the Reference case.
D
In a diverse society and a large democracy such as ours where the
expanding needs of the nation change with the temper of the times,
it is extremely difficult for any legislature to make laws applicable to
all persons alike. Some amount of classification is, therefore, neces-
sary to administer various spheres of the activities of the State. lt
E is well settled that in applying Art.14 mathematical precision or nicety
or perfect equanimity are not required. Similarity rather than identify
of treatment is enough. The courts should not make a doctrinaire
approach in construing Art. 14 so as to destroy or frustrate any bene-
ficial legislation. What Art.14 prohibits is hostile discrimination and
not reasonable classification for the purpose of legislation. Further-
F
more, the Legislature whlch is in the best position to understand the
needs and requirements of the people must be given sufficient latitude
for making selection or differentiation and so long as such a selec-
tion is not arbitrary and has a rational basis having regard to the ob- I
ject of the Act, Art. 14 would not be attracted. That is why this
G Court has laid dciwn that presumption is always in favour of the
constitutionality of an enactment and the onus lies upon the person
who attacks the statute to show that there has been an infraction o~
the constitutional concept of equality. It has also been held that in
order to sustain the presumption of constitutionality, the Court is en-
titled to take into consideration matters of common knowledge, common
H report, the history of the times and all other facts which may be exist-
ing at the time of the legislation. Similarly, it cannot be presumed
that the administration of a particular law would be don~ with an
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, !.) 523

"evil eye and an unequal hand". Finally, any person invoking ;\rt.14 A
of the Constitution must show that there has been discrimination
against a person who is similarly situate or equally circumstanced, In
the case of State of U.P. v. Deoman Upadhyaya,(') Subba Rao, J., ob-
served as follows : -
"No discriminatian can be made either in the privileges
B
conferred or in the liabilities imposed. But these propositions
conceived in the interests of the public, if logically stretched
too far, may not achieve the high purpose behind them. In
a society of unequal basic structure, it is well nigh impossible
to make laws suitable in their application to all the persons
alike. So, reasonable classification is not only permitted but c
is necessary if society should progress."
With this brief introduction, we now proceed to deal with the
arguments of learned counsel for the appellants. In the first place,
Mr. Bhatia, appearing for appellant Sanjay Gandhi ~ubmitted that
even having regard to the principles laid down by this Court in the
D
Reference case, the Act fails to pass the test laid down for a valid
classification under Art. 14. Therefore, we might mention here that the
classical tests laid dow111 for the application of Art. 14 are the fo!low-
ing : -
( 1) The classification must be founded on an intelligible
differentia which distinguishe~ persons who are placed E
in a group from others who are left out of the group.
(2) Such differentiation must have a rational relationi to
the object sought to be achieved by the Act.
( 3) There must be a nexus between the differentiation
which is the basis of the classification and the object
of the Act.
In applying the aforesaid tests, Mr. Bhatia contended that the
decision given in the Reference Case upheld the Bill and rejected the
challenge that the Bill violated Art. 14 mainly on the ground that the
Bill sought to put a certain class of persons, namely, persons holding
G
high public or political offices who had committed offences only during
the period of Emergency. In other words, he argued that the consti-
tntiorutlity of the Bill was upheld on the ground that it was legisla-.
tion confined to selected offences committed by a particular class of
persons during ·the Emergency period. It was contended that the
impugned Act transgressed the limits imposed by the judgment in the B
Reference case by bringing within its fold offences committed prior
{I) [1961] 1S.C.R.14.
524 SUPREME COURT REPORTS [1980] 3 S.C.R.

A and subsequent to the Emergency p.nd thus was in direct conflict with
the opinion of this Court rendered in the Reference case. In ampli-
, fication of this argument it was contended that this Court struck down
that part of the Bill which related to the period between February and
June 1975 on the ground that persons having committed offences
..
during that period could not be clubbed with those who had committed
B offences during the period of Emergency. In other words,. the argu-
ment ,was that the Act, by clubbing together persons accused! of
offences committed during the Emergency with those alleged to bd
guilty of crimes pertaining to periods before and after the Emergency
(i.e., by dealing with offences committed ;at any point of time what-
soever), has violated the guarantee under Art. 14 and the classifica-
c tion made by the Act is n direct contravention of the opinion given
by thls Court in the Reference case. In support pf his contention \
Mr. Bhatia relied on the following observations of this Court in the
Reference case(') : - -\
"The classification which section 4 ( 1) thus makes is both
D of offences and offenders, the former in relation to the periad
mentioned in the preamble, that is to say, from February 27,
1975 until the expiry of the proclamation of emergency dated
June 25, 1975 and in ~elation to the objective mentioned
in the sixth paragraph of the preamble that it is imperative
for the functioning of parliamentary democracy and the
E institutions created by or under the Constitution of India
that the commission of such offences should be judicially
determined with the utmost dispatch, and the latter in relation
to their status, that is to say, in relation to the high public or
political office held by them in India. It is only if both of
F these factors co-exist that the prqsecution in respect of the
offences committed by the particular offenders can be inst,i-
tuted in the Special Court.. , .. , , , , .... , .
Wc are not concerned with tl),e truth or otherwise of the
allegations, the ,narrow question before us being whether, in
the first instance, the classification is based on some qualities
G or characteristics whlch are to be found in all the persons
grouped together and not in pthers who are left ont. The
answer to that question can be one and one only, namely,
that offences alleged to hav<:i been committed during the
emergency by !Persons holding high public or political offices
in India stand in a class apart. The cover of emergency,
B so it is alleged, provided a unique opportunity to the holders
(I) [1979] 2 S, C. R. 476. ··-·
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, /.) 525

of such offices to subvert the rule of law and perpetrate A
political crimes on the society. Others left out of that group
had neither the means nor the opportunity to do so, since
they lacked the authority which comes from official position.
Thus, persons who are singled out by the Bill for trial before
Special Courts possess common characteristics and those
who fall outside that group do not possess them......... . B
The suppression of people's liberties facilitates easy com-
mission of crimes. Public criticism is a potent deterrent to
misbehaviour aud when that is suppressed, there is no fear
of detection. Secondly, crimes which are alleged to have
been committed during extraordinary periods like the period c
of emergency are oblique in their design and selective in their
object . . . . . ... But those crimes are not woven out of
the warp and woof of political motivations. Equal laws have
to be applied to all in the same situation and legislature is
free to recognise the degree of harm or evil."
(Emphasis ours) D
. Special stress was laid on the observations of this Court that the
offences alleged 10 have been committed during the Emergency by
persons holding high public or political offices were a class: apart be~
cause such offences were committed under the cover of Emergency
which provided a uniqe opportunity to the holders of the said offices E
to subvert the rule of law. It was urged that this cannot be said of
the period either before or· after the emergency rwhen no such cover
or opportunity was available to the offenders concerned to misuse or
abuse their powers and commit offences. We find this argument to
be without any substance. To begin with, it cannot be gainsaid that
this Court while dealing with the Reference case was not at all F
concerned with the provisions of the Act which is of much wider
application than the Bill considered by the Court in the Reference.
It is no doubt true that the Bill contained provisions for punishing
only those offenders who were accused pf offences committed during
a particular period namely the period 0£ Emergency. It is also true
that the period of Emergency was an extraordinary one in ,the history G
of our country and its features have been spelt out in the preamble
of the Bill as ,also in the judgment given by this Court in the afore-
said case. But that by itself does not debar Parliament from passing
a permanent Act to deal witb a specified class of persons who occupy
high public or political offices (which are offices of trust) and misuse
or abuse them. It cannot be doubted that for the establishment and R
continuance o[ a Parliamentary democracy and to secure efficiency
and purity of administration it is necessary that when such person~
526 SUPREME COURT REPORTS [1980] 3 S.C.R,
A commit serious abuse pf power and are guilty of a breach of the trust
reposed in them, they would form a special class of offenders. The
simple answer to the argument of Mr. Bhatia is that tbis Court was
not at all concerned with the broader aspect of the matter as envisaged
by the ,Act at the time when the BilE was being considered. That
this is so, is clear from the observations made by Chandrachud, C.J.,
B
and Krishna Iyer, J. The former observed : -
"Parliament'ary democracy will see its halycon days in
•
India when law will provide for a speedy trial of all offenders
who misuse the public offices held by them. Purity in public ·.J.--,
is a desired goal at all times and in all situations, emergency
c or no emergency. But, we cannot sit as a super legislature
and strike down the instant classification on the ground of
under-inclusion on the score that those others are left un-
touched, so long as there is no violation of constitutional
restraints."

D (Emphasis ours)
The observation that purity in public life is a desired goal at all
times is a sufficient justification for the classification made by the Act
which widens· its scope to include offenders of a particular type to be
punished for offences i:ommitted at any time, whether before, during
or after the Emergency.
E
Similar observations were made by .Krishna Iyer J. in his con-
curring Judgment : -
The pathology of our public law, with its class slant, is
that an µnmincing ombudsman or sentinel on the qui vive
with power to act against those in power, now or before, and
F offering legal access to the informed citizen to complain with
immunity does not exist. . . . . ... And so, to track down
and give short shrift to ............. .
x x x x x
Wheroj the proposed Jaw excludes the pre-and post-
emergency crime-doers in the higher brackets and picks out
G
only 'emergency' offenders, its benign purpose perhaps! be-
comes a crypto cover-up of like criminals before and after.
An 'ephemeral' measure to meet a perennial menace is
neither a logical step nor national fulfilment. The classifica-
tion, if I may anticipate my conclusion, is on the brink of
constitutional break-down at that point and becomes almost
H
vulnerable to the attack of Art. 14.
x x x x x
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 527

The .crucial test is 'All power is a trust', its holders are
'acccuntable for its exercise', for 'from the people and for the
people, all springs, and all must exist'. By this high and only
standard the Bill must ifail morally 'if it exempts non-Emer-
gency criminals about whom prior Commission Reports, now
asleep in official pigeon holes, bear witness and future
• Commission Reports (who knows?) may, in time, B
testify ......... ..
• Nothing about ;Emergency period is adverted to there
as a distinguishing mark. If at all, the clear clue is that all
abuse df ,public authority by exalted public men, whatever
the time of Commission, shall be punished without the c
tedious delay which ordinarily defeats justice in the case of
top echelons whose crimes affect the credentials of democm-
tic regimes.
Assuming civil liberty was a casualty during the emer-
gency, as it was, how did it obstruct trials of super-political D
criminals? if faith in democratic institutions is the victim
in case there is undue delay 1 in punishing high
public and political offenders, that holds good, regardless
Emergency . . . . . ... The question, then, is whether there
is constitutional rationale for keeping out of the reach of
speedy justice non-emergency criminals in high public ~ E
Political Offices. Such a Bill, were it a permanent addition
to the corpus juris and available as a jurisdiction for the
public to compel government, if a prima facie case were
made out even against a minister in office, to launch a pro-
secution before a sitting High Court Judge, would be a whole-
some corrective to the spreading evil of corruption, in power F
pyramids."
(Emphasis ours)
It would thus appear from the observations quoted above that the
majority judgment ,never meant to indicate that the passing of an
• Act covering all persons holding high public or political offices without G
reference to any period during which they are alleged to have com-
mited the offences sought to be made the subject matter cl their
indictnient, would be beyond the legislative competence of Parliament.
In fact, such persons would undoubtedly form a specfal class of off-
enders which would justify the legislative measure singling them out
for an expeditious trial. To hold otherwise would be to say that per- H
sons bearing the aforesaid attributes would be immune from prooe-
cution under any Special Act. Reading the opinion rendered in the
528 SUPREME COURT REPORTS (1980] 3 S.c.R.
\ ' .
A Referance case carefully we are unable to agree with Mr. Bhatia
that this Court held that only Emergency offenders could be pu~ished
under a special Act and .that any Act seeking to punish offenders of
a special type unrelated to the Emergency would be hit by Art. 14.
It is true that some of the observations made by the learned Chief Jus-
tice, if read put of context, may apparently lend some support to the
B
arguments of Mr. Bhatia but taken as a whole (as they must be) they
clearly indicate that the passing of a permanent legislation classifying
the type of offenders mentioned in the Act, namely, persons holding
high public or political offices would be valid and, in fact, would be an
ideal achievement. ·
c We may mention here that the various obser\lations made by
Chandrachud, C.J., and Krishna Iyer, J. in the Reference case were
highlighted during the debates which followed the introduction of the
bill in the Lok Sabha and the Rajya Sabha after the opinion of this
Court was given. The Bill was returned to the Lok Sabha .on March
D 21, 1979 with suggestions for its amendment so as to make it embrace
offences without reference to a particular period, namely, the pe.riod
of Emergency. The Lok Sabha accepted the suggestions and passed
the Bill in the form of the Act which received the assent of the Presi-
dent on the 16th May ,1979. Thus, th<> Act incorporates not only the
above-extracted observations made by Chandrachud, C.J., and Krishnal
E Iyer, J. but also the views expressed by the Hon'ble Members of the
two Houses of Parliament.

In view of the; factors mentioned above, we are fully satisfied that
the Act does not suffer from the infirmities pointed out by Mr. Bhatia
and the circumstance that it applies to offences committed at any time
F by a particular set of persons possessing special characteristics doe81 non
render it unconstitut.ional, for, when it puts into a class a particular
set of persons having special characteristics which distinguish them
from .others who are left out of that class and who are to be tried under
the ordinary law, the classification is eminently reasonable. It may
also be stated here that the classification made has a reasonable nexus
·G with the object sought to be achieved, namely, quick despatch and
speedy trials. In this connection, some observations of Chandrachud,
C.J., in the Reference case may be adverted to:
"If prosecutions which the Bill envisages are allowed to
have their normal, leisurely span of anything between 5 to 10
H years, no fruitful purpose will be served by launching them.
Speedy termination of prosecutions under the Bill is the heart
and soul of the Bill ....... .
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 529

Thus, both the tests are fulfilled in the instant case name- A
ly, that ( 1) the classification is fonnded on an intelligible
differentia which distinguishes those which are grouped to-
gether from others who are left out and (2) the said differen-
tia has a rational relation with the object sought to be achie-
ved by the Bill, namely, speedy termination of prosecutions
initiated in pursuance of the declaration made under clause B
4(1) of the Bill."

The same, we hold, is true of the Act.
It was_ then submitted by Mr. Bhatia that even if the dassificatiollj
was valid, as the procedure prescribed by the Act is extreme!}". C
harsh and prejudicial to the accused, Articles 14 and 21 are clearly
violated. This aspect of the matter also has been expressly dealt with
by Chandrachud, C.J., in the Reference case where he has pointed out
that once the classification is held to be vaild even if the procedure is
harsher or disadvantageous that will not attract Art. 14. In this connec-
tion, he observed:- D
If the classification is valid and its basis bears a reasonable
relationship with the object of the Bill, no grievance can be
entertained under article 14 that the procedure prescribed by
the Bill for the trial of offences which fall within its terms is
harsher or more onerous as compared with the procedure
E
which governs ordinary trials.· Classification necessarily en-
tails the subjection of those who fall within it to a different
set of rules and procedure, which may conceivably be more
disadvantageous than the procedure which generally applies
to ordinary trials .... But once a classification i~ upheld by
the application of the dual test, subjection: to harsher treat- F
ment or disadvantageous procedure loses, its relevance, the,
reason being that for the purposes of article 14, nnequals
cannot complain of unequal treatment."

We shall, however, deal with the question whether or not the
,• procedure is disadvantageons when we examine the argument of the G
learned connse] regarding sections 5, 6, 7 and 11 of the Act.

Thus, to sum np, the position so far as this part of the argument is
concerned is as follows:-
( l) Separate grouping of holders of high offices for pur-
poses of expeditious criminal action to be taken by H
superior conrts is a reasonable and valid classification
because it enhances confidence on the rule of Jaw,
530 SUPREME COURT REPORTS (1980] 3 S.C.R.

A strengthens the. democratic system and ensures purity
of public life and political conduct.
(2) The Bill was challenged before the Supreme Court on
the touchstone of Art. 14 on several grounds. In the
first place, it was argued that no rational basis for
B
separately classifying Emergency offenders existed.
The second ground of challenge was that assuming
.
that there was a valid classification, the same was
bad becanse it suffered from the vice of under-inclusion
inasmuch as holders of high public or political offices
were left out. This Court, however, repelled the ar-
gument of rational basis on the ground that the Emer-
c gency period, because of its special characteristics,
afforded adequate basis foc separate classification of
Emergency offences. The Court was not at all at
that time concerned expressly with the question as
to whether classification of high public or political
D digniiaries without reference to any period during
which they were alleged to have committed offences
would be violative of Art. 14 of the Constitution. On
the other hand, this Court made clear observations
li •
that an Act providing for such a classification would
be not only valid but also highly welcome. It is true
E that the provision regarding a particular period before
the Emergency was .then struck down but that was ,..
so because the Bill was confined to offences committed
only during the period of Emergency and the inclu-
sion of that period meant bad classification for the I
reason that the period last mentioned could not be dis- '
F tinguished from other pre-or post-Emergency periods
on any reasonable basis. This view of the Court I!
could not be interpreted as laying down a law of uni-
versal application that no Special Act on a permanent ;..._,,
basis classifying offenders possessing particular char-
acteristics or attributes and providing for their pro-
G 'I
secution under a special procedure would be invalid
or violative of Art. 14. Thus, we do not think that
the opinion of the Supreme Court in any way amount-
ed to disapproval or condemnation of a pernianent ,..
~

law in futuro bringing within its scope all holders of.
high public or political office.
H
It was then argued by Mr. Bhatia that assuming the classification
of persons holding high public or political offices to be justified, it suff-

I
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 5 31

ers from a serious infirmity in that neither the term 'high public or A
political office' has been defined nor have the offences been delineated or
defin"<l so as to make the prosecution of such offenders a practical rea-
lity. Dealing with this argument, the learned Solicitor General pointed
out that it was specifically raised when the Court was hear-
ing the Reference and written submissions were filed by the parties but
that. unfortunately, the opi[]ion did not give any finding on it and B
urged that even in absence of any finding, the argument must be deem-
ed to hav~ been rejected. We find sufficient. force in wliat the learned
Solicitor General says but as we are hearing the appeals of persons who
have been convicted and sentenced to various terms of imprisonment
so that their liberty is involved, we feel that we should go into Mr.
Bhatia's argument. c
As regards the definition of 'high public or political offices' the ex-
pression is of well-known significance and bears a clear connotation
which admits of no vagueness or ambiguity. Even during the debate
in Parliament, it was not suggested that the expression suffered 'from
any vagueness. Apart from that even in the Reference case, Krishna D
Iyer, J., referred to holders of such offices thus:-
"heavy-weight criminaloids who often mislead the people
by public moral weight-lifting and multipoint manifes-
toes ....
. . . . such super-offenders in top positions. . . . E
.... No erudite pedantry can stand in the way of prag-
"1atic grouping of high-placed office holders separately, for
purposes of high-speed criminal action invested with early
conclusiveness and inquired into . by high-level courts."
(Emphasis ours) F
il i' manifest from the observations of Krishna Iyer, J. that
pcr><ons, holding high public or political offices mean persons holding
top P"'itions wielding large powers.

In American Jurisprudence 2d (Vol. 63, PP, 626, 627 & 637) the
author describes persons holding public or political offices thus: G

"Public offices are cheated for the purpose of effecting
the end for which government has been instituted, which is
the common good, and not for the profit, honour, or private
interest of any one man, family, or class of men .... The
powers and functions attached to a position manifest its B
cha racier, and there is implied in every public office an autho-
rity to exercise some portion of the sovereign power of the
14'--289 SCI/80
532 SUPREME COURT REPORTS [1980] 3 S.C.R.

A state in making, executing, or administering the law ..... .
Various positions, on the other hand, hav& been held not to
be public offices, as, for examine, auditor of accounts appoin-
ted by railroad Commissioners .... "
Similarly, Ferris ill his thesis on 'Extraordinary Legal Remedies defineS
B p1!J>lic or political offices thus :
"A public office is the right, authority and duty created
and conferred by law, by which an individual is vested with
some portion of the ~overeign functions of the Government
to be exercised by him for the benefit of the public, for the
term and by the tenure prescnbed by law. It implies a
c delegation of a portion of the sovereign power. It is trust
conferred by public authority for a public purpose, embrac-
ing the ideas of tenure, duration, emoluments and du-
ties ...... The determining factor, the test, is whether the
office involves a delegation of some of the solemn functi~
of Govermnent, either executive, legislative or judicial, to be
D
exercised by the holder for the public benefit."
(72 Calcutta Weekly Notes, ;p.64, Vol.72)
Similarly, Wade and Phillips in 'Constitutional Law' defines poli-
tlcal offices thus:-
E "The Cabinet is the body of principal Miilisten with
whom rests the real direction of policy. We speak of the
Ministry or the Administration of a particular Prime Minis-
ter with reference to the full body of political office holders
who from time to time hold the reins of Govermnent, i.e.,
the Ministers of the Crown and their Parliamentary Secre-
1' taries."
O. Hood Phillips in 'Constitutional and Administrative Law' (4th
Edition, p. 312 & 314) defines the hierarchy of Govermnent Deport-
ments thus:
>-··
"Ministers-At the head of each Department--except
the "non-political" Departments, which are not important
for present purposes-is the Minister, whether he is called
Minister or Secretary of State or President of the Board.
He is a member of the Government and changes with the
Ministry of the day; and he may also be a member of the
Cabinet.
B
Parliamentary Secretaries-Under the Minister will be
one or more Parliamentary Secretaries, or Parliamentary
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 533

Under-Secretaries of State if the Minister himself is a Secre- A
tary of State. As their nrune implies, Parliamentary Secre-
taries are members of one or other of the Houses of Parlia-
ment, they are Junior Ministers who change with the
·Government of the day. They assist their Chief in the
Parliamentary or political side of his work, as well as in the
• administration of his Department .... B
Tbe det'ailed administration of the work of a Govern-
ment Department is carried out by "permanent" civil
• servants. Although, like Ministt>rs, they are servants of
the Crown, civil servants are called "permanent" since their
appointment is non-political and in practice lasts during good
behaviour, as opposed to Ministers, Parliamenmry Secre- c
taries, etc., who are responsible to Parliament and change
office with the Government."
So also, Ramsay Muir in his book 'How Britain is Governed' (3rd
Ed. p. 81) states as follows : -
"In this chapter we have to discuss the second element D
in the Government-that which changes with every change
in the balance of power between parties in the country,
which consists not of experts, but of politicians, and which
works under the limelight of publicity . . . . This changing
element is known as 'the Ministry'."
E
Asirvatham in his book 'Political Theory' (9th Ed p. 352) defines
Political Executive thus : -
"Turning from the nominal to the political executive,
we find at least four distinct forms, viz., the English, the
American, the Swiss, and the French. In England, the
Prime Minister and the Cabinet constitute the political F
executive. They can remain in office only so long as they
1 command the confidence of Parliament. They are mem-
·~. bers of one or the other house of the legislature and play a
leading part in initiating legislation. They are also admi-
nistrative heads of departments and, in that capacity, are
responsible to Parliament not only for policy but also for G
the details of administration. They work together as a
team and, in their relation to Parliament, stand or fall to-
gether."
In words and Phrases (Permanent Edition, Vol. 32 [(Suppl.) P. 226]
the word 'Political' has been defined thns : - H
"The word "political" is defined as of or pertaining to
p01icy, p01itics, or conduct of government. ... or pertaining
534 SUPREME COURT REPORTS (1980J 3 S.C.R.

,A to, or incidental to, exercise of functions vested in those
charged with conduct of government, and relating to
management of affairs of State".
"The word 'political' is defined by Bouvier to be pertain-
ing to policy or the administration of government. People
v. Morgan, 90 III 558, 563.
8
The word "political" means that which pcrtaim to gov·
ernment of a nation ........ "(P. 802)
A perusal of the observations made in the various textbooks re-
ferred to above clearly shows that 'political office' is an office which
forms part of a Political Department of the Government or the Poli-
c tical Executive. This, therefore, clearly includes Cabinet Ministers,
Ministers, Deputy Ministers and Parliamentary Secretaries who are
running the Department formulating policies and are responsible to
the Parliament. The word 'high' is indication of a top position and
enabling the holder thereof to take major policy decisions. Thus,
D the term 'high public or political office' used in the Act contemplates
only a special class of officers or politicians who may be categorised
as follows : -
(1) officials wielding .extraordinary powers entitling them
to take major policy decisions and holding positions
of trust and answerable and accountable for their
E wrongs:
(2) persons responsible for giving to the State a clean,
stable and honest administration;
( 3) persons occupying a very elevated status in whose
hands lies the destiny of the nation.
F
The rationale behind the classification of persons possessing the
aforesaid characteristics is that they wield wide powers which, if
exercised improperly by reason of corruption, nepotism or breach of
trust, may mar. or adversely mould the future of the country and tar-
nish its image. It cannot be said, therefore, with any conviction that
· G persons who possess special attributes could be equated with ordinary
criminals who have neither t11e power nor the resources to commit off-
ences of the type described above. We are, therefor('. satisfied that
tlm terms 'persons holding high public or political offices' is self-
explanatory and admits of no difficulty and that mere absence of de-
finition of the expression would not vitiate the classification made by
H the Act. Such persons are in a position to take major decisions re-
garding social, economic financial aspects of the life of the commu-
nity and other far-reaching decisions cm the home front ;is. also

I
v. c. SHUKLA v. DELiil ADMN. (Fazal Ali,!.) 535

regarding external affairs and if their actions are tainted by breach of A
trust, corruption or other extraneous considerations, they would
damage the interests of the country. It is, therefore, not only pro-
per but essential to bring such offenders to book at the earliest pos-
• sible opportunity.

It was then contended that even the nature and character of the B
• offences have not been defined in the Act which introduces an clement
of vagueness in the classification. We are, however, unable to ogree
with this contention because clause (4) of the preamble clearly ind·1-
cates the nature of the offences that could be tried under the Act.
Clause ( 4) of the preamble to the Act ;runs thus :
"AND WHEREAS all powers being a trust, and holders
c
of high public or political offices are accountable for the
exercise of their powers in all cases where Commissions of
Inquiry appointed under the Commissions of Inquiry Act,
1952 or investigations conducted hy Government
through its agencies disc'lose offences committed by such D
holders."

The words 'powers being a trust' clearly indicate that any act
which amounts to a breach of the trust or of the powers conferred
on the person concerned would bt; an offence triable under the Act.
Clause ( 4) is wide enough to include any offence committed by holders E
of high public or political offices which amounts to breach of trust
or for which they are accountable in law and does not leave any room
for doubt. Mr. Bhatia, however, submitted that even if the pcr><:rn
concerned commits a petty offence like violation of municipal bye-
laws or traffic rules he would have to be prosecuted under the Act
V{hich will be seriously prejudicial to him. In our opinion, this F
argument is purely illusory and based on a misconception of the pro-
visions of the Act. Section 5 which confers powers on the Central
Government to make a declaration clearly refers to the guidelines bid
down in the preamble and no Central Government would ever think
of prosecuting holders of high public or political offices for petty

- offences and the doubt expressed by the counsel for the appellant is,
therefore, totally unfounded.

It was contended on behalf of the appellants that Parliament was
G

not competent to pass a Special Act and create Special Courts for
a particular set of offenders. This argument need not detain us be-
cause it has been effectively answered in the reference case which has H
held clearly that Parliament was fully competent to pass the Bill creat-
ing Special Courts.
536 SUPREME COURT REPORTS [1980] 71 s.c.R.

'A Regarding the validity of sections 7 and 11 of the Act which
correspond to clauses 6 and 10 of the Bill, Chandrachud, C.J., obser-
ved as follows : -
"In view of our conclusion that Parliament has the
legislative competence to enact clauses 6 and 10 ( 1) of the
B Bill, it is unnecessary to consider the argument of the learn-
ed Solicitor General that, everything else failing, Parlia-
ment would have the competence to legislate upon the
jurisdiction and powers of the Supreme Court by virtue of
article 248 ( 1) read wi1h entry 97 of List L ...
To sum up, we are of the opinion that clauses 2, 6 and
c 10(1) of the Bill are within the legislative competence of the
Parliament. That is to say, Parliament has the competence
to provide for the creation of Special Courts as clause 2 of
the Bill provides, to empower the Supreme Court to dispose
of pending appeals and revisions as provided for by clause
6 of the Bill and to confer jurisdiction on the Supreme
D Court by providing, as is done by clause 10(1), that an
appeal shall lie as of right from any judgment or order of
.a Special Court to the Supreme Court both on fact and on
law."
It was also contended for the appellants that the Act seeks to
E change the situs of the Court and virtually abrogates s. 181 of the
Code of Criminal Procedure. This argument also does not merit
any consideration because it was raised in the Reference case and
rejected. Dealing with this aspect of the matter, Chandrachud, C.J ...
observed:-
"As regards situs of trial, it is unfair to make an as-
sumption of mala fides and say that an inconvenient forum
will be chosen deliberately. Besides, the provisions of
chapter XII of the Code containing section 177 to 189,
which deal with "Jurisdiction of the criminal courts in
Inquiries and Trials", are not excluded by the Bill. Those
G provisions will govern the question as to the situs of trial."
Mr. Bhatia further submitted that the Act creates an invidious
distinction inasmuch as persons. holding high public or political offi-
ces would have the benefit of trial by such an experienced officer as
a sitting Judge of a High Court while the appellants have been dep-
H rived of that right and were tried by a Special Judge who was only
a Sessions Judge. This argument, in our opinion, i~ c0mpletely de-
void of substance. The first information report against the appel-
V. c. SHUKLA V. DELHI ADMN. (Fazal Ali, J.) 537

!ants was lodged on 13th April 1977 and ths chargesheet was sub- A
mitted before the Special Judge who convicted the appellants by the
order dated February 27, 1979. The Act, however, came into force
on May 16, 1979, that is to say, three months after the conviction
and about two months after the appellants had file<l their appeals1 be-
• fore the High Court. In these circumstances, the question of the
appellants being tried by the Special Judge appointe<l under the Act B

• could not arise because the said Special Court did not exist at all
when the trial of the appellants was conclude<l. The existence of
such fortuitous circumstances cannot attract Art. 14. This matter
was considered in two decisions of this Court. In the case of
'----4( Khandige Sham Bhat & Ors. v. The Agricultural Income Tax Offi-
cer('), Subba Rao J., observed as follows:-
c
"If there is equality and uniformity within each group,
the law will no! be condemned as discriminative, though
to some fortuitous circumstance arising out of a peculiar
situation some included in a class get an advantage over '
others, so long as they are not singled out for special treat- D
ment."
/
The same view was expressed thus in a later decision of this Court
reported as Dantuluri Ram Raju & Ors. v. State of Andhra Pradesh
& Anr.(');
E
"The facts that on account of topographical situation
some landowners get greater benefit of the drainage scheme
because of thei~ lands being more prone to damage by floods
is a fortuitous circumstance and the same would not be a
valid ground for striking down the impugned legislation. It
is weil established that if there is equality and uniformity
within each group, the law will not be condemned as dis-
criminative though due to some fortuitous circumstances
arising out of a peculiar situation, some 'included in a
class get an advantage over others so long as they are not
singled out for special treatment."
G

- In view of these decisions, the argument of Mr. Bhatia must be
overruled.

This, therefore, concludes the submissions made by Mr. Bhatia
generally regarding the constitutionality of the Act.
8
(I) [1963] 3 S. C. R. 809
(2) [\972] I S. C. C. 421.
538 SUPREME COURT REPORTS [!980] 3 S.C.R.

A Mr.· Mridual adopted the above-noted arguments, advanced by
Mr. Bhatia, but put forward contentions with respect to other aspocts1
which we shall deal with at a later stage of the jusfgment.
It was next contended by Mr. Bhatia that s. 5 of the Act suffers
from •several constitutional and legal infirmities. •
B Sub-sections (1) and (2) thereof may be extracted here :
"Declaration by Central Government of cases to be •
dealt with under this Act;
5.(1) If the Central Government is of opinion that there.
is prima facie evidence of the commission of an
c offence alleged to have been committed by a person
whp held high public or political office in India
and that in accordance with the guidelines contained
in the preamble hereto the said offence ought to be
dealt with under this Act, the Central Government
shall make a declaration to that effect in every case
in which it is of the Jlforesaid opinion.
(2) Such declaration shall '!lot be called in question in
any court."
In the first place, it was contended that s. 5 (I) suffers from the
vice of excessive delegation of powers so as to violate Art. 14 inas-
E much as the discretion conferred on the Central Government is abso-
lute, naked and arbitrary and is clearly discriminatory as it is open
to the Central Government to pick and choose persons and make
declarations in respect of them while excluding others. In our
opinion, this contention is based on a serious misconception of the
provisions of the Act. For one thing, no unguided or uncanalised
power has been conferred on the Central Government. A basic con-
dition imposed on the Central Government is ~t there must be a
proper application of mind regarding the existence of prima facie
evidence of the commission of an offence. Secondly, the discretion
has to be excrci:sed in accordance witl1 the guidelines contnined in the[ '
G preamble. The various clauses of the preamble which have been
set out in an earlier part of this judgment, lay down clear guidelines
and provide sufficient safeguards against any abuse of power. Thirdly,
clause ( 4) of the preamble clearly lays down that the power under
s. 5 is exercisable only aft~r the commission of an offence by the
holder of a high public or political office has been disclo~ed as a
H result of an inquiry conducted under the Commissions of Inquiry Act
or of an investigativn conducted by the Government through its agen-
cies. It is well settled that discretionary power is, not the same thing
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 53 9

as power to discriminate nor can the constitutional validity of a law A
be tested on the assumption that where a discretionary power is con-
ferred on a high authori1y, the same may or would be exercised in a
discriminatory manner. In the case of Dr. N. B. Khare v. The State
of Delhi('), Kania, C. J ., dealing with the same aspect of the matter
observed as follows :
B
.. "Moreover, this whoie argument is based on the assump-
tion that the Provincial Government when making the order
will not perform its duty and may abuse the provisio!Js. of
the section. In my opinion, it is improper to start with
such an assumption and decide ihe legality of an Act on
that basis. Abuse of power given by a law sometimes c
occurs; but the validity of the law cannot be conte~_~d be-
cause of such an apprehension. In my opinion, therefore,
this contention of the petitioner cannot be accepted."
In the case of Kathi Raning Rawat v. The State of Saurashtra(') this
Court observed :
D
"The di•cretion that is conferred on official agencies in
, such cir~umstances is not an unguided discretion, it has to
be exercised in conformity with the policy to effectuate
which the direction is given and it is in relation to that
objecfrve that the propriety of .the classification would have
to be test~d." E
The same view was taken in a later decision of this Court in the case
of Matajog Dobey v. H. C. Bhart(") where the court observed asl
follows:-
"It has to be borne in mind that a discretionary power
is not necessarily a discriminatory power and that abuse F
of power is not to be easily assumed where the discretion
is vested in the Government and not in a minor official."

,- In the case of In Re The Kera/a Education Bill, 1957,(4) this Court
said :
"But all that we need say is that apart from laying down G
a policy for the guidance of the Government in the matter
of the- exercise of powers conferred on it under the differ-
ent provisions of the Bill including cl. 36, the Kerala Legis-
lature; has, by cl. 15 and cl. 37 provided further safeguards.
(1) [19501 S. C.R. 519.
(2) (19521 S. C. R. 435. H
(3) [1955] 2 S. C. R- 925.
(4) [1959] S. C.R. >95.
540 SUPREME COURT REPORTS [1980] 3 S.C.R.

A In this connection, we must bear in mind what has been
laid down by this Court in more decisions than one,
namely, that discretionary power is not necessarily a dis-
criminatory power and the abuse of power by the Gov-
ernment will not be lightly assumed."
B Similarly, in the case of Jyoti Pershad v. The Administrator for the·
Union Territory of Delhi('), Ayyangar J., speaking for the Court,
observed:
"So long therefore as the Legislature indicates, in the
operative provisions of the statute with certainty, the policy
c and purpose of the enactment, the mere fact that the legis-
lation is skeletal, or the fact that a discretion is left to
those. entrusted with administering the law, affords no basis
either for the contention that there has been an excessive
delegation of legislative power as to amount to an abdica-
tion of its functions, or that the discretion vested is un-
D canalised and unguided as to amount to a carte blanche! to
discriminate."

In the case of Mali Ram Deka etc. v. General Manager, N. E. F.
Railways, Maligaon, Pandu, etc.('), Shah J., speaking for the Court
remarked:-
E
"Power to exercise discretion is not necessarily to be
assumed to be a power to discriminate unlawfully, and
possibility of abuse of power will not invalidate the confer-
ment of power. Conferment of power has necessarily to be
coupled with the duty to exercise it bona fide and for effec-
F tuating the purpose and policy underlying the rules which
provide for the exercise of the power. If in the scheme of
the rules, a clear policy relating to the circumstances in
which the power, is to be exercised is discernible, the
conferment of power must be regarded as made in further-
ance of the scheme, and is not open to attack as infringing
G the equa,Jity clause."
r
In the case of V. C. Shukla v. The State through C.B.l.( 3 ), this ..-
Court pointed out that where a discretion is conferred on a high.
authority such as the Central Government it must be presumed that
H (1} [1962] 2 s. c. R. 125
(2) [1964] 5 S. C.R. 683.
(3) [1980] 1 S. C. R. 380.
v. c. SHUKLA v. DELHI ADMN. (Fazal AU, 1.) 5 41

the Government would act in accordance with law and in a bona fide A.
manner, .and said :
"In fact, this Court has held in a number of cases that
where a power is vested in a very high authority, the abuse
• of the power is reduced to the minimum."

• In view of these decisions, it must be held that the power conferred
on the Central Government is controlled by the guidelines contained
in the preamble which by virtue of the provisions of s. 5 (1) becomes
a part of that section. As the power h;ts been conferred on the Cen-
tral Government which is to make a declaration in accordance with
the conditions laid down in s. 5 (1) and, therefore, in conformity will c
the guidelines mentioned in the preamble, the attack based on discri-
mination is unfounded and is hereby repelled.

Another ll!llied argument advanced by Mr. Bhatia was that the
issuance of a declaration under s. 5 ( 1) depends purely on the sub- D
jective satisfaction of the Central Government and under sub-section
(2) of s. 5 such a declaration cannot be called into question by any
court so that there would be an elemenb of inherent bia~ or malice;
in an order which the Central Government may pass, for prosecuting
persons who are political opponents and that the section is therefore.
invalid. We are unable to agree with this argument. As already point- E
ed out, the power of the Central Government to issue a declaration
is a statutory power circumscribed by certain conditions. Further-
more, as the power is vested in a very high authority, it cannot be
assumed that it is likely to be abused. On the other hand, where the
power is conferred on such a high authority as the Central Govern-
ment, the presumption will be that the power will be exercised in a F
bona fide manner and according to law. In the case of Chinta Lingam
& Ors. v. Government of India & Ors.,(') this Court observed:

"At any rate, it has been pointed ont in more than one
decision of this Court that when the power has to be exercis-
ed by one of the highest officers the fact that no appeal has G
been provided for is a matter of no moment .... It was said
that though the power was discretionary but it was not
necessarily discriminatory and abuse of power could not be
easily assumed. There was moreover a presumption that
public officials would discharge their duties honestly anti in
accordance with rules of law.."

(I) [1971] 2 S. C.R. 871.
542 SUPREME COURT REPORTS [1980] J '.C.R.

To the same effect is the -decision of this Court in Budhan Ch0:,dJ?'J'
& Ors. v. The State of Bihar('). It was however suggested that as
the Central Government in a democracy consists of the political party
which has the majority in Parliament, declarations under s. 5 ( J ) nt 'no
Act .could be used as an engine of oppression against members of
parties who are opposed to the ideologies of the ruling party. This is
B really an argument of fear and mistrust which, if accepted. would
invalidate prudically all laws oi the land; for, tlien even a prosccut;oo
under the ordinary law may be considered as politically motivated,
which is absurd. Furthermore, prejudice, malice or taint is not a
matter for presumption in the absence of evidence supporting it. It
is well settled that burden lies on the parties alleging bias or malice
c to prove its existence. and if malice or bias is proved in a particular
case, the courts would strike down the act vitiated by it,· in exercise
of its powers under Arts. 226, 227 or 136. This aspect of the matter
was dealt with in the reference case thus : -
"Though the opinion which the Central Government has
to form under clause 4(1) is subjective, we have no doubt
that despite the provisions of sub-clause (2) it will be open
to judicial review at least within the limits indicated by thi:>
Court in Khudaran Das Deo v. The State of West Bengal
& Ors. (1975, 2, SCR 832, 845). It was observed in that
case by one of us, Bhagwati J., while speaking for the Court.
that in a Government of laws "there is nothing like unfet-
tered c.li:-:.cretion re1nove fron1 judlcial reversibility'~. 1-he:
opinion has to be formed by the Gcvcrnment, to set the least,
rationally and in a bona fide manner."
Another limb of the argument of Mr. Bhatia regarding the provi-
F sions about declaration contained in s. 5 (1) was that' they are \iolative;
of the principles of natural justice inasmuch as they do not provide
for any hearing being given to the accused before a declaration is made.
This argument, in our opinion, is also without substance. It is to be
borne in mind that at the stage when the declaration is sought to be
made there is no list pending nor has any prosecution been launched
G against the accused. Section 5 deals only with the decision taken by
the Central Government to prosecute and, until that decision is notified,
the prosecution dpes not start, and the question of an accused being
,heard at that stage, therefore, does not arise at ·all. A couple of
instances in point may be cited here with advantage. In cases where
H law requires sanction to be given by the appointing authority before a
prosecution can be launched against a Government servant, it has
JI) [1955] I S. C.R. !045,
v. c. SHUKLA v. DELHI AOMN. (Fazal Ali, J.) 543

never been suggested that the accused must be heard before sanction A
is accorded. The question of sanction arises at a point of time when
there is no danger to the liberty of the subject and the accused at that
stage is not in the picture at all. It is only after sanction is accorded
that an accused is brought to trial or proceedings are started against
him when he is to be heard and can challenge the validity of the
• sanction. Similarly, when a first information report is filed before B
a police officer, the law docs not require that the officer must hear the
accused before recording it or submitting a charge-sheet to the Court.
• Another instance is to be found where a complaint is filed before a
Magistrate who chooses to hold an inquiry under s. 202 of the Code
of Criminal Procedure before issuing process or summons to the accus-
ed. It has been held in several cases that at that stage the accused c.
has got no locus to appear and fi1e his objections to the inquiry. The
right of the accused to be heard comes into existence only when au
order summoning the accused is passed by the Magistrate under s. 204
of the Code of Criminal Procedure. In the case of Cozens v. North
Devon Hospital Mangement Committee & Anr,(') Lord Salmon
pithilv observed : D

"No one suggests that it is unfair to launch a criminal
prosecution without first hearing the accused."
The argument of Mr. Bhatia which is under examination is thus
also found to be wholly untenable.
E
I! was then contended that in the instant case the declaration elated
June 22, 1979 made under s. 5 (I) of the Act per se shows that it
had not resulted from any real application of mind by the Central
Government. The declaration is based,. it is pointed out, on the
existence of prima facie evidence of the commission of certain offences
by Mr. Shukla and Mr. Sanjay Gandhi and proceeds to state that the F
said offences ought to be dealt with under the Act. It was vehemently
.... argued that at the time when the declaration was made the appellants
had already been convicted and had filed appeals in the High Court
and that therefore for the C.entral . Government to say that 'a prima
facie case' was made out was to close its eyes to the realities of the
G
situation. The argument, in other words, is that once the prosecu-
tion of the appellants had culminated in a conviction and an appeal
therefrom, there was no question of the existence of any 'prima facie
case', and that the use of such an expression could be intelligible only
if the accused were facing criminal proceedings which had not culmi-
nated in a conviction. The assertion about the existence of a prima B
facie case clearly shows, according to learned counsel, that the Central
(I) [1966] 2 Q. B. 330.
544 SUPREME COURT REPORTS [1980] 3 S.C.R.

Gove.rnment did not apply its mind at all to the factors relevant to the
issuance of the declaration or that, at any rate, the application of its
mind was perfunctory. We find ourselves unable to accept.tbi' argu-
ment which fails to consider certain fundamental aspects of the scope
and ambit of s. 5 (1) of the Act and is based on a misconstruction of
the nature of the declaration which is to be made. Under the section
the Government has to be satisfied on two counts before it could issue •
a declaration. It must be satisfied in the first instance that there is
prima facie evidence of the commission of an offence. Secondly, it
must form the opinion in accordance with the guidelines contained in
the preamble that such offence ought to be dealt with nuder the Act.
The argument under examination relates to the first limb of the satis-
faction of the Central Government. So, the question arises whether
the condition of the existence of prima facie evidence is not fulfilled
in the case of the present declaration merely because the trial in the
first court had ended in a conviction and an appeal therefrom. The
answer to the question has to be an emphatic 'no', the reason being
that if conviction is construed as evidence of the existence of soro~
thing more than a mere prima facie case, that would uot mean that a
prima facie case ceases to exist. That a prima facie case must be
found to exist is only the minimum requirement for the satisfaction of
the Central Government and it would be doubly made out if the evi-
dence available is stronger than is needed to make out only a prima
'E facie case. A conviction of an accused person cannot mean that there
is no prima facie evidence against him. All that it spells out is that
not only a prima facie case is made out against him but that the
evidence available is even stronger and is sufficient for a conviction.
However, as the Government, while acting under the section, is to
satisfy itself only with the existence of prima facie evidence, the asser-
tion by it in the declaration that such evidence was available to i1Js
satisfaction cannot, by any stretch of imagination, be held to be in-
applicable to a case in which a conviction has been recorded. In
this view of the mattet we find the use of the expression 'prima facie''
evidence in the declaration to be fully justified even though the trial
had ended in a conviction which was under appeal on the date of the
declaration. In this context, the contents of the declaration also
deserve scrutiny. It reads :
"WHEREAS the Central Bureau of Investigation record-
ed under section 154 of the Code of Criminal Procedure
(2 of 1974) on the 13th April 1977, a first information
report and registered a case being RC-2177-CIU ( 1) for
suspected offences of a conspiracy to commit theft and actual
theft of the film materials of the film 'Kissa Kursi Kaa' pro-
v. c. SHUKLA v. DELHI ADMN. (Fazal AU, J.) 545

duced by one Shr~ Amrit Nahata from the custody of the A
Ministry of Information and Broadcasting :
AND WHEREAS investigations conducted by the Cen-
tral Bureau of Investigation disolosed offences committed
during the period while the proclamation of emergency dated
the 25th June 1975, issued by the President under clause
B
(i) of Article 352 of the Constitution was in force :
. AND WHEREAS ·after completion of investigation the
Central Bureau of Investigation filed a chargesheet on the
14th July 1977 in the court of the Chief Metropolitan Magis-
trate, Delhi :
AND WHEREAS the facts mentioned in the said charge- c
sheet disclosed offences having been committed by Shri Vidya
Charan Shukla, who was the Minister of Information and
Broadcasting, Government of India, and Shri Sanjay Gandhi,
son of late Shri Feroz Gandhi, under section 120-B of the
Indian Penal Code, 1860 (45 of 1860) read with sections
D
409, 435, 411, 414 and 201 of the I.P.C. as well as substan-
tive offences under section 409, 411, 414, 435 and 201 of
the I.P .C. as also the said offences read with section 109 of
the I.P.C.:
AND WHEREAS a case (RC/2177-CIA-I) was filed in
the court of the Chief Metropolitan Magistrate, Delhi, with E
respect to the said offences and the Chief Metropolitan Magis-
trate committed the case to the Court of Session for trial
on 22-2-78:
AND WHEREAS the District and Sessions Judge having
convicted the accused by his order dated 17-2-79 sentenced F
Shri Vidya Charan Shukla and Shri Sanjay Gandhi with
imprisonment and also imposed fines on them as specified
---~ in the said order dated 27-2-79 :

, AND WHEREAS Shri Vidya Charan Shukla and Shri
Sanjay Gandhi filed appeals Nos. 71/79 and 72/79 respec-
tively under Section 374(2) of the Code of Criminal Pro- G
cedure, 1973 (2 of 1974) in the High Court of Delhi on
20-3-79 against the aforesaid conviction and that the said
appeals were admitted by Delhi High Court on 21-3-79 :
AND WHEREAS the State has also filed an appeal in
the Delhi High Court on 18-5-79 under section 377, Code H
of Criminal Procedure (No. 2 of 1974) for enhancement of
the sentence with respect to the aforesaid accused persons :
546 SUPREME COURT REPORTS [1980] 3 S.C.R.

A AND WHEREAS the above-mentioned appeals are now
pending hi the High Court of Delhi :
AND WHEREAS the Central Government after fully
and carefully examining the material placed before it in regard
to the aforesaid offences is of opinion that there is pr!ma fade
B evidence of the commissiol) of the said offences by Shri
Vidya Charan Shukla, who was the Minister of Information
and Broadcasting, Government of India, at the relevant,
period and as such a person who held high public and poli-
•
tical office, Shri Sanjay Gandhi and others and that in
accordance with the guidelines contained in the preamble to
c the Special Courts Act, 1979 (22 of 1979) the said offences
ought t<;> be dealt with under that Act.
NOW, THEREFORE, in exercise of the powers confer-
red by sub-section ( 1) of Section 5 of the Special Courts
Act, 1979 (22 of 1979), the Central Government hereby
declares that there is prima facie evidence of the commission
D
of the aforesaid offences alleged to have been committed by
Shri Vidya 1Charan Shukla, who was the Minister of Infor-
mation and Broadcasting, Government of India, during the
relevant period, and as such held a high public and political
office in India during the relevant period, and Shri Sanjay
E Gandhi, son of late Shri Feroz Gandhi, and that in accord-
ance with the guidelines contained in the Preamble to that
Act, the said offences ought to be dealt with under that
Act."
A perusal of the declaration reveals that it gives the history of the
case from beginning to el)d which demonstrates that the Central
F
Government was fully aware of the various stages through which the
trial of the appellantsi passed. Thus, the formation of the opinion by
the Government of the existence of a prima facie case cannot be held
to be perfunctory or illusory. It has not been shown that the deolara-
tion was in any way irrational or mala fide or based on extraneous
G considerations. The argument advanced by Mr. Bhatia, therefore,
must be overruled.
•',
The last plank of attack on s 5 of the Act is that the declaration
is non est because it has not been laid before each House of Parliament
as required hy s. 13 of the Act. This argument merits some considera-
--
tion. Section 13 runs thus :
B
"13. Every notification made under sub-section (!) of
section 3 and every declaration made under sub-section (1)
v. c. SHUKLA v. DEi.HI ADMN. (Fazal Ali, !.) 547

of section 5 shall be laid, as soon as may be after it is made, A
before each House of Parliament."
As we read the section, we are clearly of the opinion that its provisions
are purely directory and not mandatory so that if the conditions men-
tioned in it are not fulfilled the declaration would not be vitiated. It is
to be noted that the section does not say that until a declaration is B
placed before the two Houses of Parliament it shall not be deemed to
be effective, nor does the section intend that any consequence would
result from its non-compliance. Moreover, the matter is no longer res
integra and is concluded by several decisions of this Court, the most
recent of them being M/s. Atlas Cycle Industries Ltd. & Ors. v. The,
State of Haryana(') where this Court observed: c
"Thus two considerations for regarding a provision as
directory are : (1) absence of any provision for the contin-
gency of a particular provision not being complied with or
followed, and (2) serious general inconvenience and preju-
dice that would result to the general public if the act of the D
Government or an instrumentality is declared invalid for non-
compliance with the particular provision ....

*** ***
In the instant case, it would be noticed that sub-section
(6) of Section 3 of the Act merely provides that every order E
made under Section 3 by the Central Government or by any
officer or authority of the Central Government sha!l be laid,
before both Houses of Parliament, as soon as may be, after
it is made. It does not provide that it shall be subject to
the negative or the affirmative resolution by either House of
Parliament. It also does not provide that it shall be open to F
the Parliament to approve or disapprove the order made
under Section 3 of the Act. It does not even say that it
shall be subject to any modification which either House of
. Parliament may in its wisdom think it necessary to provide .
It does not even specify the period for which the order is to
be laid before both Houses of Parliament nor does it provide G,
any penalty for non-observance of or non-compliance with
the direction as to the laying of the order before both Houses
of Parliament. It would also be noticed that the requirement
as to the laying of the order before both the Houses
·of Parliament is not a condition precedent but subsequent to
H
the making of the order. In other words, there is no prohi-
(1) [1979] 2 s. c. c. 196.

-"
' 15-289 SCI/80

r.
548 SUPREME COURT REPORTS [J 980] 3 S.C.R.

A bition to the making of the orders without the approval of
both Houses of Parliament. In these circumstances, we are
clearly of the view that the requirement as to laying contamed
in sub-section ( 6) of Section 3 of the Act falls within the
·first category, i.e., "simple laying" and is directory, not man-
datory."
B
We fully agree with this view and hold that on a true interpreta-
tion of section 13 of the Act, it is a case of a simple laying of the dec:--
laration before each House of Parliament and the declaration cannot
be struck down on he grounds suggested by the counsel.

C It was then submitted that as the declaration is based on the
iesult of an investigation held by a Central agency even though the
offences were alleged to have been committed in a State, it affects the
basic structure of the Constitution and is, therefore, void. This argu-
ment, in our opinion, is also misconceived. The doctrine of the viola-
tion of basic structure of the Constitution or its fundamental features
D applies not to the provisions of a law made by a State legislature or
Parliament but comes into operation where an amendment made in
the Constitution itself is said to affect its basic features like fundamen-
tal rights enshrined under Articles 14, 19, 31, or the power of amend-
ment of the Constitution under Art. 368 and so on. The doctrine
has no application to the provisions of a Central or State law because
if the statute is violative of any provision of the Constitution it can be
struck down on that ground and it is not necessary to enter into the
question of basic structure of the Constitution at all.
Mr. Mridul, appearing for Mr. Shukla, apart from adopting the
arguments of Mr. Bhatia, as discussed above, raised two additional
F points. In the first place, he submitted that s. 5(1) of the Act has
no application to the facts of the present case because under s.5 (1)
a declaration has to be made on the basis of the sources indicated
in the section, namely, inquiries conducted under the Commissions
of Inquiry Act or investigations which become otiose and would
have relevance only if Iris client had not been convicted. This
G
argument, in our opinion, appears to be the same as was put for-
ward by Mr. Bhatia which we have already rejected.
.•
It was next argued that conviction being a finding of guilt can-
not be said to fall within the situation contemplated by
section 5(1) of the Act. Mr. Mridul contended that as section 6
H is an extension of the scheme contained in section 5 the former
·does not overrule the entire Code of Criminal Procedure but in
fact takes in only those cases which are pending at the trial stage
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 549

when the declaration is made. Once the case ends in a conviction, A,
section 6 spends itself out and there is no room for the npplication
of section 5, according to learned counsel. It is. true that section
6 does contemplate a prosecution which is relatable to the declara-
tion under section 5 but that does not debar the application of sec-
• tion 5 to olher stages of a criminal case, especially those specifically
B
dealt with under section 7 of the Act which, as we shall presently
show, fully covers the situation in hand. The limited field in which
" section 6 operates does not therefore exhaust the consequences flow-
ing from the issuance of a declaration under section 5.
Mr. Mridul however contended that section 7 would not apply to
this case because its language embraces only those appeals which c
arise out of a prosecution which itself is pending at the time when a
declaration is made. The argument is devoid of force as, to accept
it, would be to ignore an important part of section 7 which runs
thus :
"7. If at the date <if the declaration in respect of any D
offence any appeal or revision against any judgment or
order in a prosecution in respect of such offence, whether
pending or disposed of, is itself pending in any court of
appeal or revision, the same sliall stand transferred for dis-
posal to the Supreme Court."
E
The words "whether pending or disposed of" are significant and
qualify the immediately preceding clause "a prosecution in respect of
such offence". The legislature has thus taken care to expressly pro-
vide that an appeal or revision would be covered by section 7 and
transferable to the Supreme Court for disposal if it is directed against
a judgment or order made in a prosecution which is either pending F
or has been disposed of, the only other requirement of the section
being that such appeal or revision must itsel'f be pending at the date
of the declaration. To interpret section 7 in such a way that its ap-
plicability is limited to appeals or revisions arising from prosecutions
pending at the trial stage at the date of the relevant declarations is
possible only if tl1e words "or disposed of" are treated as absent from G
the section-a comse which is not open to this Court in view of the
express language used. ')'he argument is therefore repealled.

Finally, it was argued that by providing in s. 7 for an automatic
transfer of appeals from the High Court to the Supreme Court the
legislature has exercised a judicial power which is vested in the H
Supreme Court alone under s. 406 of the Code of Criminal Proce-
dure and that the section is invalid as it conflicts with the said s. 406.
550 SUPREME COURT REPORTS [J 980] 3 S.C.R.

A We are, however, unable to agree with this argument. There is no
question of the exercise of any judicial power by the legislature in
enacting s. 7 which covers a well-kuown legislative process. The de-
cision of this Court in Smt. Indira Nehru Gandhi v. Shri Raj
Narain(') relied upon by .Mr. Mridul deals with quite a different
situation and is wholly inapplicable to the present case. There what
B
the legislature did was to dispose of two appeals on merits through
an amendment to ,deprive the court of the oportunity to decide j
the appeals which are pending befor.e it. The amendment was struck
down by this Court in a judgment during the course of which Mathew,
J., observed :
c "At the time when the Amendment was passed, the
appeal filed by the appellant and the cross appeal of the
respondent were pending before the Supreme Court. Clause
( 4) was legislation ad hominem directed against the course
of the hearing of the appeals on merits as the appeal and
the cross appeal were to he disposed o( in accordance with
D that clause and not by tiflplying the law to the facts as as-
certained by the court. This was a direct interference with
the decision of these appeals by the Supreme Court on their
merits by a legislative judgment."
Thus, in that case the legislation was ad hominem and was direc-
E ted against the course of the hearing of the appeals on merits. In
the instant case, however, the Parliament has done nothing of the
sort. By enacting s. 7, it has merely provided a new forum for the>
appeals which were pending in the High Court and in respect of
which a valid declaration, fully consistent with the provisions of the
Act, was made-a course which involved no interference with the
F judicial functions of the court and was fully open to the legislature.
We are thus clearly of the opinion that the decision relied upon• by·
Mr. Mridul is of no assistance to him and that his argument is 'l\ith-
out merit.
We now pass on to the next phase ,of the argument of Mr. Bhatia
and Mr. Mridul which relates to the>- nature of the procedure provi-
G
ded for by the Act. According to the contention of learned counsel
for the appellants, the procedure prescribed by the Act is harsher and
more rigorous than that provided for in the Code of Criminal Pro-
cedure and causes serious prejudice to the accused and is, therefore.
violative of Art. 14 of the Constitution. We mieht mention here that
H in view of our finding that the classification made by the Act com-
plies with the dual test laid down by this Court and is a reasonable
(1) [1976] 2 S. C.R. 347
v. c. SHUKLA v. DELHI ADMN. (Fazal AU, !.) 5 51

classification, Art. 14 would not be attracted even if the procedure A
is h<:ld to be harshar than that available under the ordinary law.
Apart from that, however, we find that the procedure prescribed by
the Act is not harsh or onerous as contended but is more liberal and
advantageaus to the accused who is assured of an expeditious and
' fair trial thereunder. Before, however, dealing with this aspect of
B
the ma.tter, we might dispose of an argµment advanced by Mr. Bhatia
that his client 11ot having held any high public or political office has
been drawn into this case by virtue of the declaration and has, there--
fore, been singled out for a discriminatory treatment. We are unable
to accept this argument. It is true that Mr. Sanjay Gandhi has never
been the holder of any high public or political office but the first clause c
of the preamble clearly includes within its ambit not only persons
holding high public or political offices, but also others as sc.ction 8
states :
"8. A Special Court shall have jurisdiction to try any
person concerned in the offence in respect of which a decla-
ration ha.s been made, either as principal, conspirator or D
abettor and all other offences and accused persons as can
be jointly tried therewith at one trial in accordance with the
Code."
Section 8 thus incorporates the well-known concept of joint trial
of accused persons. in respect of offences forming part of !he samq E
transaction. In these circumstances no discrimination, as complain-
ed of by the appellants, results.
Corning now to the procedure prescribed by the Act, reliance was
placed by learned counsel for both the appellants on a few cases de-
cided by tl)is Court to show that the procedure prescribed by the Act F
is llarsh and unfavourable to the accused. As suggested by Mr.
Bhatia we have tried to judge the harshness or otherwise of the proce-
dure from the _vision of an accused person but find ourselves unable
• to agree with the contention. We might mention here that in the Re-
ference case, Chandrachud, C.J. pointed out the undernoted three
infinnities appearing in the Bill which were violative of Art. 21 of G
the Constitution :
( 1) that there ~as no provision for transfer of a case;

( 2) that a retired Judge could be appointed as a special
Judge; and
H
(3) that the appointment of a Special Judge was con-
trolled by the Government. .
552 SUPREME COURT REPORTS [1980] 3 S.C.R.

Shingha), J., in his dissenting note observed that if jurisdiction in
the matter of appointing a Special Judge was given to the High Court
concerned leaving its Chief Justice to designate one of the Judges of
his Court as a Special Judge, the procedure may become very fair
and unexceptionable. This view, however, was not shared by the
majority of Judges though they did agree that if such a course was
• adopted that would be undoubtedly laudable. But then it is for the'
legislature to decide upon the procedure to be followed in the matter :0

and it is significant for our purpose that the aforesaid infirmities have
been removed by the Act, wher~under not only ,is the appointment of
a Special Judge made free of control by the Government as it now
rests with the Chief Justice of the High Court concerned subject to
c the only condition that he must obtain the concurrence of the Chief
Justice of India therefor. A provision for transfer of cases from one
Special Court to another Special Qlurt has also been inserted in
s.10(1). The challenge on the ground of violation of Art. 21 of the
Constitution fails.
D We shall now deal with the contention that the procedure pres-
cribed by the Act is harsh. In the first place, it was submitted that
under s. 7 an appeal pending in the High Court stands transferred to
the Supreme Court and that thus the appellant is deprived of a valu-
able right of having the appeal heard and decided by the High Court
which is vested in him the moment he is convicted. Secondly, it was )(
. IC urged that if the appeal in the High Court was decided against the
appellant, he would still have a right to move ti)e Supreme Court
under Art. 136 of the Constitution against conviction but that by
reason of the appeal having been transferred to the Supreme Court,
that right also has been taken away. In onr opinion, there is no
substance in this grievanC(O. To .begin with, an appeal being a .crea-
J! ture of statute, an accused has no inherent right to appeal to a parti-
cular tribunal. The legislature may choose any, tribunal for the pur-
/
.__
pose of giving a right of appeal. Mor~over, an appeal to the High
Court is less advantageous than an appeal to the Supreme Court for
the following reasons :
(1) The right of appeal given to an accused from the
G order of a Session Judge ()r Special Judge to the High Court
is not totally unrestricted. Section 384 of the Code of Cri-
minal Procedure empowers an Appellate Court to dismiss
an appeal sulll)11arily if it is satisfied that there is no suffi-
cient ground for interference.
H The relevant portion of s. 384 runs thus :
"384. (1) If upon examining the petition of appeal and
copy of the judgn1ent received J!nder section 382 or section
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 553

383, the Appellate Court considers that there is no suffi-
cient ground for interfering, it may dismiss the appeal
summarily;

Provided that -
I
(a) no appeal presented under section 382 shall be dist
missed unless the appellant or his pleader has had a reason-
able opportunity of being heard in support of the same,
(b) no appeal presented under section 383 shall be dismissed
except after giving the appellant a reasonable opportunity
of being heard in support of the same, unless the Appellate
Court considers that the appeal is frivolous or that the
c
production of the accused in custody before the Court would
involve such inconvenience as would be. disproportionate in
the circumstances of the case;
(c) no appeal presented under section 383 shall be dis-
missed summarily until the period allowed for preferring such
appeal has expired.
(2) Before dismissing an appeal under this section, the Court may
call for the record of the case."

Thus, an appeal to the High Court under the Code of Criminal E
Procedure is attended with the risk of being summarily dismissed under
s. 384. On the other hand, an appeal to the Supreme Court is
governed by s. 11 (1) of the Act which runs thus : -

"11. (1) Notwithstanding anything in the Code, an appeal
shall lie as of right from any judgment, sentence or order, F
not being interlocutory order, of a Special Court to the
Supreme Court both on facts and on law."

An appeal under s. 11 (1) lies as of right and both on facts and
on law. Thus, the right conferred on a convict by s. 11 (1) is wider
and less restricted than the right of appeal given 15y the Code of
G
Criminal Procedure.
(2) If the appeal is filed before the Supreme Court or is
transferred thereto, the accused becomes entitled to a hearing
of his case by the highest court in the country both on facts
and on law and thus gets a far greater advantage than a right
to move the Court for grant of special leave which may or H
may not be granted, it being a matter of discretion to be
exercised by the Supreme Court.
554 SUPREME COURT REPORTS [1980] 3 s.c.R.
A.
A similar view-was expressed in Syed Qasim Razvi v. The State of
Hyderabad & Ors.(") where this Court made the following observa-
tions:-
"But i.n this present case the original trial was by the
Special Tribunal which was invested with the powers of a
B sessions court and consequently only one appeal would lie to
the High Court. It is said that the case could have been tried
by the District Magistrate and in that case the accused could
have one appeal to the Sessions Judge and a second one to
the High Court under the Hyderabad law. This contention
rests on a pure speculation aud is hardly tenable."
c
In the above view of the matter, we are unable t\) agree with learned
counsel for the appellants that the procedure regarding appeals is
harsher than that prescribed by the Code of Criminal Procedure.

There is yet another aspect of the matter which wa$ stressedi by the
learned Solicitor General. Under the provisions of s. 376 of the Code
D
of Criminal Procedure no appeal by a convicted person would lie in any
of the following cases : -
(1) where a High Court passes only a sentence of imprison-
ment for a term not exceeding six months or of fine not
exceeding one thousand rupees;
E
( 2) where a Court of session or a Metropolitan Magistrate
passes only a sentence of imprisonment for a term not
exceeding three months or of fine not exceeding two
hundred rupees;
(3) where a Magistrate of the first class passes only a sentence
F . of fine not exceeding one hundred rupees;
( 4) where, in a case tried summarily, a Magistrate empowered ,. __
to act under section 260 passes only a sentence of fine not ,,
exceeding two hundred rupees.
Thus if the Sessions Judge were to try an accused and sentence him
G to fine or to_ imprisonment not exceeding three months, he would havei
no right of appeal at all. On the other hand, if a Special Judge imposes
the same sentence, an appeal lies to the Supreme Court as of right both
on facts and on law. Could it be reasonably argued in such circum-
stances that the right of appeal provided by the Act was harsher or
Jess advantageous to the accused ? For the reasons· given above, our
H
answer to this question is in the negative.
(!) [1953] S. C. R. 589.
V. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 555

It was then pointed out that the right of having matters decided in A
revision by the High Court has been taken away from the accused by
the procedure prescribed by the Act, under s. 11 (1) under which no
appeal also lies against an interlocutory order and it was contended that
the section therefore entailed a definite procedural disadvantage to the
I accused. This argument also is based on a misconception of the provi-
sions of the Act and those of the Code of Criminal Procedure, section B
397 (2) of which runs thus : -
"397. (2) The powers of revision conferred by sub-section
(I) shall not be exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial or other proceed-
ing." c
Thus, even the Code of Criminal Procedure does not provide for
any revision against an interlocutory order. As to what is the conno-
tation <if an interlocutory order is a matter with which we are not con-
cerned in this case. What is material is that so far as interlocutory
orders are. concerned, there is no right of revision either under the code D
of Criminal Procedure or under the Act. In considering this aspect of
the matter one must also bear in mind the fact that under the Act the
Special Court is presided over by no less a person who is a sitting Judge
of a High Court and the possibility of miscarriage of justice is reduced
to the bare minimum. While adverting to this aspect of the case, this
Court observed in the case of V. C. Shukla v. The State through C.B.l. E
(supra) :
That the Act makes a distinct departure from the trial of
ordinary offences by criminal courts in that the trial of the
offences is entrusted to a very high judical dignitary who is a
sitting Judge of the High Court to be appointed by the Chief F
Justiee concerned on the recommendations of the Chief Justice
of India. This contains a built-in safeguard and a safety
valve for ensuring the independence of judiciary on the cine
hand and a complete fairness of trial on the other. In appoint-
ing the Special Judge, the Government has absolutely no hand
or control so that the Special Judge is appointed on the re-- G
commendations of the highest judicial authority in the coun-
try, viz., the Chief Justice of India. This would naturally
instil great confidence of the people in the Special Judge who
is given a very elevated status."
We may mention here that in the case of Jagannath Sonu Parkar v.
H
State af Mahlirashtra('), the right of appeal from an order of a Special
(I) (1963) Supp. I S. C. R. 573.
556 SUPREME COURT REPORTS [J 980J 3 S.C.R.

A Magistrate directly to the High Court (bypassing 1he Sessions Judge)
was held to be more advantageous from the point of view of the accused.
In this connection, this Court said :
"It is true that if the complaint was filed in the Court of
Magistrate having jurisdiction over Deogad alone, as it could
B lawfully be filed, an appeal would against an order of convic-
tion, lie to the Court of Session, Ratnagiri and an application
in the exercise of revisional jmisdiction to the High Court from
the order of the Court of Session. But it is difficult to hold that
this amounts to any discrimination. Apart from the fact that
the trial by a special Magistrate and an appeal directly to the
C High Court against the order of the Magistrate may be re-
garded normally as more advantageous to the accused
persons, the distinction between Courts to which the appeal
may lie arises out of the constitution of the Special Magis-
trate and not any special procedure evolved by the
Notification."
D
What is true of an appeal to the High Court from the order of a
Special Magistrate equally applies to an appeal to the Supreme Court
from the order of a Special Court constituted under the Act. Thus,
viewed from any angle, the procedure prescribed by the Act cannot be
said to be prejudicial or less advantageous, to the accused, much Jes~
E harsher or more rigorous than the one provided in the Code of Criminal
Procedure.

It was then argued that though the Special Court has been given
the status of a Court of Session under s. 9 ( 3) of the Act, yet it has to
follow, under s. 9(1) the_reof the procedure prescribed for the trial of
warrant cases before a Magistrate in sections 23 8 to 243 and 248 of
F
the Code of Criminal Procedure. We cannot conceive how any grie-
vance can be made on this score that the provision is harsh. The
procedure for trial of warrant cases gives a full opportunity to the
accused to participate in the trial at all its stages and to rebut the case
for the prosecution in every possible manner and it has not been pointed
G out how the adoption thereof for trials under the Act would be to the
disadvantage of the accused. We find that the grievance put forward
is unfounded.
Great reliance was placed by !'earned counsel on the judgment in
The Slate of West Bengal v. Anwar Ali Sarkar(') in support of the
H proposition that the procedure prescribed by the Act was harsh and
disadvantageous to the accused. Before referring to cert.~in passages ill!
(I) [1952] S. C. R. 284
V. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 557

that judgment (which has been fully considered in the Reference case) A
we consider it necessary to give the background and the special facts
in the light of which the Judges of this Court made the relevant obser-
vations. The West Bengal legislature passed the West Bengal Special
j Courts Act (hereinafter to be referred to as tbe 'West Bengal Act')
constituting Special Courts and empowering the State Government to
B
refer cases or offences or classes of cases or classes of offences to such
Courts but did not at all indicate any guidelines as to tbe nature of the
cases to be so referred which was thus a matter left entirely to tbe dis-
cretion of the Government. In other words, the Government was given
a blanket power to refer any case of whatsoever nature to the Special
Courts. Sub-sections {1) and (2) of s. 5 of the West Bengal Act are c
e>tracted below:-
"5 ( 1) A Special Court shall try such offences or classes
of offences or cases or classes of cases, as tbe State Govern-
ment may by general or special order in writing, direct.
(2) No direction shall be made under sub-section (1)
D
for the trial of an offence for which an accused person was
being tried at the commencement of this Act before any court,
but, save as aforesaid, such direction may be made in respect
of an offence, whether such offence was committed before or
after the commencement of this Act."
A perusal of these provisions would show that the State Government E
was given an uncontrolled power to refer for trial offences or cases by
a general or special order. Under s. 3, the Government was empowered
by a notification in the Official Gazette to constitute Special Courts and
s. 4 provided for the appointment of Special Judges to preside over such
Courts. Even though no conditions regulating the exercise of discretion
by the State Government were laid, Sastri, CJ., upheW the validity of
...
the law on the ground tbat the State in the exercise of its governmental
power was entitled to make laws operating differently to different groups
or classes of persons. Elaborating tbe point, Sastri, C.J., observed :
"In the face of all these considerations, it seems to me
difficult to condemn section 5(1) as violative of Article 14, G
' 1f the discretion given to the State Government should be
exercised improperly or arbitrarily, tbe administrative action
may be challenged as discriminatory, but it cannot affect the
constitutionality of the law. Whether a law conferring dis-
cretionary powers on an administrative authority is constitn-
tionally valid or not should not be determined on the assump- D
tion that such authority will act in an arbitrary manner in
exercising the discretion committed to it .... On the contrary,
558 SUPREME COURT REPORTS [1980] 3 S.C.R.

A it is to be presumed that a public authority will act honestly
and reasonably in the exercise of its statutory powers, and
that the State Government in the present case will, before
directing a case to be tried by a Special Court, consider
whether there are special features and circumstances which
might unduly protract its trial under the ordinary procedure
B
and mark it off for speedier trial under the Act.

Even from the point of vrew of reasonable classification, I
can see no reason why the validity of the Act should not be
c sustamed. As already pointed out, wide latitude must be
allowed to a legislature in classifying persons and things to be
brought under the operation of a special law, and such classi-
fication need not be based on an exact or scientific exclusion
or inclusion."
It might be noticed, therefore, that even though no guidelines ar. all
D were provided by the statute, yet Sastri, C.J., held that the classification
was a reasonable one and sustained the validity of the law. The other ·
Judges, however, did not agree with the view of Sastri, C.J., and struck
down the provisions of section 5 of the West Bengal Act. However,
the judgment is wholly inapplicable to the present case in which the
Act not only lays down clear, explicit and exhaustive guidelines but
E
further requires the State Government to act only on the basis of certain
specific conditions and after being satisfied on a fully application of the
mind that a prima facie case was mac'.e O'Jl. We ha>() already indicated
that.by enacting s. 5, the Act makes the various clauses of the preamble
as a part of that section. Thus, any possibility of discrimination or
F absolute or arbitrary exercise of powers is ei<cluded by the Act. The
case of Anwar Ali Sarkai: (supra) , therefore cannot furnish any criterion
for judging the validity of any of the provisions of the Act. It is in the
light of this background that we have to examine Anwar Ali Sarkar's
case. It may be mentioned that one of the grounds which appealed to
Sastri, C.J., was that the obje<:t of the West Bengal Act was to provide
G for speedier trial by instituting a system of Special Courts with a sim-
plified procedure which was sufficient, in his opinion, to justify the
validity of that Act. Fazal Ali, J., (as he then was) laid stress on the
fact that although a procedure ensuring a speedy trial was prescribed
by the West Bengal Act yet that Act had not set out any principle of
classification while laying down the new procedure. He held that in
n the absence of a reasonable classification a procedure which catered to
a speedier trial was itself not sufficient to justify the cc,nstitutionality of
the West Bengal Act. In the instant case, we have already pointed out
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J,) 559

that a reasonable classification of a particular set of persons or class of
persons, viz., those holding high public and political offices, has already
been mad·0 and that this classification is consistent with the object of
the statute which is a rational one, viz., expeditious trial. This was not
true of the West Bengal Act, s. 5 of which was held to be violative of
Art. 14 by Mahajan, J., also on the ground that there was no basis for
the differential treatment prescribed in the West Bengal Act. He B
observed :

"Section 5. of the West Bengal Special Courts Act is hit by
article 14 of the constitution inasmuch as it mentions no basis
for the differential treatment prescribed in the Act for trial of
criminals in certain cases and for certain offences .... c
By the process of classification the State has the power of
determining who should be regarded as a class for purposes
of legislation and in relation to a law enacted on a particular
subject."
D·
These observations can obviously have no application to the present
case because, as already held by us, the Act makes not only a classifi-
cation but a classification which fulfils the dual test laid down by this
Court in several cases.

Reliance was placed by the counsel for the appellant on the follow- E
ing observations of Mahajan, J. :
"The present statute suggests no reasonable basis or clas-
sification, either in respect of offences or in respect of cases.
It has laid down no yardstick or measure for the grouping
either of persons or of cases or of offences by which measure
these groups could be distinguished from those who are out-

..... side the purview of the Special Act. The Act has left this
matter entirely to the unregulated discretion of the provincial
government."
i These observations also do not apply to the facts of the present case
because the Act in the pr0sent case has provided a rational basis for the G
classification and laid down specific yardsticks for grouping of special
class of persons and has provided a different procedure which is not
harsh (the 'position being different in the West Bengal Act) and which
is undoubtedly favourabk and advantageous to the accused.

Reliance was also placed on a few observations of Mukherjea, J., H
where he has pointed out that in making the classification the legislature
cannot certainly be expected to provide absolute symmetr~ and ha</ held

'
560 SUPREME COURT REPORTS [J 980] 3 S.C.R.

A that while recognising the degree of evil, the classification should not be
arbitrary, artificial or evasive. He has stated :

"It must rest always upon real and substantial distinction
hearing a reasonable and just relation fo the thing in respect to
which the classification is made."
B

There can be no doubt that the present Act fulfils all the condi-
tion laid down by Mukherjea, J., who found that certain provisions of
the West Bengal Act curtailed the rights of the accused in a substan-
tial manner, thereby resulting in discrimination. Herc we have!
c already pointed out that no rights of the accused have been curtailed ,I.-----
and that on the other hand, the procedure prescribed is more advan-
tageous and fair to him than that available under the ordinary law
of the land, namely, the Code of Criminal Procedure.

D Finally, Mukherjea, J., pointed out that the language of s. 5(1) of
the West Bengal Act vested an unrestricted discretion in the State
Government in cases or classes of cases to be tried by the Special
Court in accordance with the procedure laid down by that Act. This
infirmity is not present in the provisions of the present Act which
treats equally all persons who form part of the classification made by the
E Act, the same procedure being applicable to all. The ordinary law gov-
erns only those persons who are left out of the classification and do not
fulfil the conditions of the persons constituting the class, namely, hol-
ders of high public and political offices. Thus, the observations of
Mukherjea, J., are of no help to the appellants which is also true of
passages appearing in the judgment of Das, J., (as he then was) and
F
cited before us. In the first place, Das, J., deals with the conditions
necessary for a valid classification, which have already been spelt ant
by us. There the learned Judge held that if the 'State Government
classified offences arbitrarily, without any reasonable or rational
basis having relation to the object of the Act, its action will amount
G to an abuse of its powers. We have already pointed out that there
is no question of the classification made by the Act being arbitrary
or nnreasonable because the basis for the classification is undoub-
tedly a reasonable one and has a rational nexus with the object of
the Act, namely, expeditious trial. We have pointed out that it
will be in the public interest that the offenders sought to be tried under
H the Act are either convicted or acquitted within the shortest possible
time. Bose, J., conceded that though the procedure prescribed by
the West Bengal Act may pramote the ends of justice and would be ,.
v. c. SHUKLA v. DELHI ADMN. (Fazal AU, !.) 561

welcome, yet he took serious exception to the differential treatment A
resulting therefrom. He observed :
"What I have to determine is whether the differentiation
made offends what I may call the social c:Onscience of a
sovere'gn democratic republic ...... It is the differentiation
which matters; the singling out of cases or groups of cases B
or even of offences or classes pf offences, of a kind fraught
with the most serious consequences to the individuals con-'
cerned, for special, and what some would regard as pecu-
liar, treatment."

All these observations have however, to be read in the light .of c
the pecuilar provisions of the West Bengal Act which contained no
guidelines, no conditions, no safeguards but conferred uncontrolled
and arbitrary powers, on the Government to make the classification
as it liked. This, however, is not the case here. We are, therefore,
unable to agree with learned counsel that the observations of the
Judges constituting the Bench in Anwar AU Sarkat's case (supra) D
can be called into aid for the purpose of striking down the Act
in the present case.
Thus, after a consideration of the prov1s1ons of the Act, the
guidelines contained in the preamble, the procedural part of the Act
and the classification made we are clearly of the opinion that none E
of the sections of the Act are violative of Art. 14 or Art. 21 or any
other provision of the Constitution. We hold that the classification is
valid and reasonable and has a rational nexus with the object of the
Act and that the procedure prescribed is fair and advantageous to
the accused. Accordingly, we declare that the Act and its provi-
sions are· constitutionally valid and over-rule preliminary objection~ F
taken on behalf of the appellants.

FAZAL ALI, J. The appellant, V. C. Shukla (hereinafter referred
to as 'A-1') in criminal appeal No. 494 of 1979 has been coovicted
by the Sessions Judge, Delhi under s. 120 B read with ss. 409, 435,
411, 414 and 201, Indian Penal Code and also under s. 409, Indian
G
Penal Code in respect of the positive print and negative and other
material of the film 'Kissa Kursi Kaa; under s. 411 read with s. 109,
Indian Penal Code; under s. 414 read withs. 109, Indian Penal Code;
under s. 435 read with s. 109 I.P.C. and under s. 201 read with
s. 109, I.P.C. The appellant, Sanjay Gandhi (hereinafter
referred to as 'A-2') in Crimirnl appeal No. 493 of 1979 has H
I been convicted by the Sessions Judge, Delhi under s. ·120 B read
with ss 409, 435, 411, 414 and 201 of the Indian Penal Code and
562 SUPREME COURT REPORTS [1980] 3 S.C.R.

A has been further convicted under ss. 435, 411 and 201, I.P.C. in
regard to the negative and other material of the film 'Kissa Kllrsi Kaa'
·as also under s. 409 read with s. 109 of the Indian Penah Code. Acc-
used No.1 was seutenced under s.120 Bread with ss. 409, 435, 411,
414 and 201 to two years rigorous imprisonment; under s. 409' re-
garding the negative and other materials to two years rigorous imp-
B risonment and a fine of Rs. 20,000/- and in default further 6 months
rigorous imprisonment; under s.409 regarding the positive print of
the film to two years rigorous imprisonment and fine of Rs. 5,000/-
and in case of default further rigorous iinprisonment for three w.onths;
. under s, 411 read with s. 109 to r!gcrous i1nprisonment for one year;
under s. 414 read with s. 109 to rigorous imprisonment for on·' year;
c under si'201 read with s. 109 to rigorous imprisonment for one year;
and under s. 435 read with s. 109 to rigorous imprisonment for one
year and six months. Accused No. 2 was sentenced under ''· 120 B
read with ss. 409, 435, 411, 414 and 201 to rigorous imprisonment
for two years; under s. 435 to rigorous imprisonment for one year
and six months and a fine of Rs. 10,000/- and in case of default
D
further rigorous imprisonment for four months; under s. 411 to
rigorous ·imprisonment for one year; und·er s. 414 to rigorous
imprisonment for one year; under s. 201 in regard to the negative,
etc., to rigorous imprisonment for one year; under s. 201 in regard
W 13 trunks, etc., to rigorous imprisonment for one year and under
E s. 409 read with s. 109 to rigorous imprisonment for two years. The
aforesaid sentences of imprisonment were ordered to run concurrently
in the case of both the accused.
The learned Sessions Judge has given full and complete details
of the prosecution case against the appellants and has divided the
allegations against them in several parts. On being convicted by
F the Sessions Judge, Delhi, the accused filed appeals before the Delhi
H)gh Court against their convictions and sentences, indicated above,
and were released on bail pending the hearing of the appeals. Mean-
while, the Special Courts Act of 1979 came into force and by virtue
of a declaration made under s.' 7 of the said Act., the appeals stoad
transferred to this Court and were· placed for hearing before us. As
G the learned Sessions Judge has give11 all the necessary details of the Ii
prosecution case against the appellants, it is not necessary for us to
give all the facts but we propose to give a bird's eye view of the
sub-stratum oi the allegations on the hns;s of which the ap;:ie\lants
have been convicted, dwelling particularly on those aspects which
merit serious consideration. We have heard learned counsel for
B
the parties at great length both on the constitutional points involved
in appeals and the facts. By an order dated December 5, 1979, we
V. c. SHUKLA v. DELHI ADMN. (Faza~ Ali, J.) 563

disposed of the constitutional points which were in the nature of A
preliminary objection to the maintainability of these appeals and
overruled these objections. The reasons for the said order have
been given by us which would form part of this judgment.
Coming now to the facts, shorn of unnecessary details, the story
begins with the production of a film called Kissa Kursi Kaa by Shri B
Amrir Nahata, PW 1, under the banner of Dhwaqi Prakash. PW l
was a member of Parliament and had produced the film in the year
1975. The film, according to the prosecution, was a grotesque
satire containing a scathing criticism of the functioning of the Central
Government and was open to serious objections which were taken,
even by the Central Board ,of film Censors (hereinafter to be referred c
to as the 'Board'). After the film was ready for release, PW 1,
Amrit Nahata, applied for certification of the film on the 19th of April
1975 before the Board. The film was viewed on April 24, 1975 by
an Examining Committee of the Board and while 1hree Members
were of the opinion that certificate for exhibition, with drastic cuts,
should be given, another Member and Mr. N. S. Thapa, the Chairman D
disagreed with the opinion of their colleagues and accordingly referred
the matter to the Revising Committee. The Revising Committee
after viewing the film agreed by a majority of 6 : 1 for· certification
of the film, the dissent having been voiced by Mr. Thapa, the Chair-
man and accordingly under rule 25 (ii) of the Cinematograph
(Cenrorship) Rules, 1958, a reference was made to the Central E
Government on 8-5-75. In this connection, a letter was iiddressed
to PW 6, Mr! S.M. Murshed, who was· at the relevant period Direc-
tor in the Ministry of Information & Broadcasting, Incharge of film
and T.V. Projects ancl was appointe.d Joint Secretary on 1st May
1975. The correspondence in this regard is to be found in the file
Ext. PW/6A. Before making his comments PW 6 saw the film some- F
time in the middle of May 1975. Meanwhile, PW 1, Amrit Nahata,
was directed to deposit the positive print of the film comprising 14-
reels of 35 mm with the Films Division Auditorium, .situate at 1,
Mlµ!adev Road, New Delhi (hereinafter to be referred to as the
'Auditorium'). In pursuance of these directions,. PW 1 deposited
G
the positive print and an entry !hereof was made by the Librarian-
cum-Projectionist of the Auditorium which is Ext. PW 17/A. PW
17 K.P. Sreedharan, who was a Technical Officer Ir,oharge also ins-
pected the reels and found them in order.
Although Murshed, PW 6, after seeing the film agreed with the
opinion of the Chairman of the Board that film may be 0pen to R
objection on the j!l'ound that it was full of sarcasm and contained
criticism of the political functioning of the government machinery
l 6-2S9CI/80
564 SUPREME COURT REPORTS [1980] 3 S.C.R.

A yet he was personally of the opinion that certification for exhibition
should not be refused. The witness accordingly recorded a note
and submitted it to• ,Mr. A. J. Kidwai, the then Secretary,, Ministry
of Information and Broadcasting. The matter was then examined by
Mr. I. K. Gujarat, the then Minister of Information & Broadcasting
but no final decision was taken. Meanwhile, PW 1, Amrit Nahata •
B filed a writ petition in this Court which is Ext. PW 1/D. On the
23rd of June 1975., a notice was issued by the Ministry of Informa-
tion & Broadcasting to PW 1, Amrit Nahata, to show cause why
certification to the film be not refused. The notice was made return-
able by 9-7-75. Thus, it appears that the Ministry of Information
& Broadcasting had taken a tentative decision to refuse certification
c to the film !Jccause of its objectionable and offensive nature. We might
state here that so far, neither A-1 nor A-2 was anywhere in the picture.
In fact, the position is that the film faced rough weather even at the
initial stage of consiMration hy the Board as a result of which the
matter was referred to the Central Government where the question of
D refusal of certification was seriously considered and ultimately a notice
was issued under the directions of the Ministry. We have particularly
highlighted this aspect of the matter because the learned Sessions
Judge was largely swayed _by the consideration that A-1 took a very
prominent part in banning the film and in getting the positive print
and other material in his personal custody in order to destroy the same
E with the aid of A-2. On the other hand, the facts disclosed by the
prosecution ex facie show that objections to certification of the film
had been taken at the very initial stage and the ultimate order was
passed during the time when A-1, Mr. Shukla had taken over as
Minister, · which was merely. the final scene of a drama long in
process.
F
Continuing the thread from where we left it, Emergency was pro-
cl~imed on the night between 25th and 26th of June 1975 and soon
thereafter A-1 took charge as the Union Minister of Information &
Broadcasting and he was of the opinion that the film should be
banned. On July 5, 1975, in pursuance of the decision taken by .the
Central Government, the Coordination Committee directed &eizure of
G
the film and that its negatives, positives and all other materials relatino
to it be taken in the custody 01 tne Ct;nCrai oovernn1ent v1ot; Cxt. PW
6/D. On July 10, 1975, A-1 directed that the film be banned from
screening under the Defence of India Rules, vide Ext. PW 6/E-4.
Finally, on the 11th of Juiy 1975, PW 6. Murshed, passed an order ·
H that no certification was to be given to the film for public exhibition
which was followed by a letter dated July 14, 1975, forfeiting the film
to the Government. 1n pursuance of the ·decision taken by the Central
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 565

Government, PW 39, S. Ghose, Deputy Secretary, Incharge of the Films A
Division, wrote a letter to the Chief Secretary, Government of Maha-
rashtra for seizure of all the positives and negatives of the film as
also other related materials. In pursuance of this order, the Bombay
police seized the entire film on 1~8-1975 and deposited the same in
the godown of the Board. As, however, a final order had been pass-
ed by the Government banning the fihn, PW 1, Amrit Nahata, filed B
• a petition for special leave in the Supreme Court on 6-9-1975. This
petition was heard on 29-10-75 and this Court directed the Govern-
ment to screen the film on 17-11-1975 in the Auditorium for being
·shown to the Judges constituting the Bench. In pursuance of the order
of this Court, intimation was sent to the Ministry concerned and PW
62, Mr. S. M. H. Burney, who was then Secretary, Ministry of
c
Information & Broadcasting, directed that immediate action be taken
·to implement the anders of the Supreme Court, and that arrangements
should be made to bock the Auditorium for 17-11-1975. By a let:er
dated 5-11-1975, Ext. PW 2/A-2, the Supreme Court was also inform-
ed regarding the steps taken which, 1ccording to the prosecution were D
the prelude to the conspiracy between the two appellants leading
to the seizure, disposal and destmction of the fihn.

Sometime thereafter, PW 2, L. Dayal, took over as Joint Secretary
(Films Division) in place of Mr. Murshcd.

We might emphasise at this stage that there is absolutely no evi- E
dence to show that there was any meeting of minds between A- I nnd
A-2 nor is there any material to indicate that A-2 played any role in
the banning of the film. The decision to ban the film appears to
have been taken by the Ministry headed by A-1, on the merits of the
case. No motive is attributable to A-1 at this stage because even the
F
· .. __.. -Chairman of the Board, PW 8, Mr. Thapa, who was an independent
witness, was of the view that the film should not be certificated for
., public exhibition. Similarly, the steps taken by the officers of the
Ministry in pursuance of the banning of the film, namely, the seizure
of the film at Bombay and its transfer to Deihl appear to be in the
nature of routine to see that the decision taken by the Government G
was implemented. As no stay had been obtained by PW I, Amrit
Nahata, from the Supreme Court, the Government was not hound to
stay its hands. On the other hand, as soon as the Ministry received
the orders of this Court for screening the film on 17-11-1975, imme-
diate steps were taken to comply with the orders of this Court.
H
Before we proceed further, we might indicate that it is well settled
'that in order to prove a criminal conspiracy which is punishable under
566 SUPREME COURT REPORTS [1980] 3 S.C.R.

A s. 120 B of the Indian Penal Code, there must be direct or circum-
stantial evidence to show that there was an agreement between two or
more persons to commit an offence. This clearly envisages that there
must be a meeting of minds resulting in an ultimate decision taken by
the conspirators regarding the commission of an offence. It is true
that in most case it will be difficult to get direct evidence of an agree-
•• ment to conspire but a conspiracy can be inferred even from circum-
stances giving rise to a conclusive or irresistible inference of an agree-
ment between two or more persons to commit an offence. After
having gone through the entire evidence, with the able assistance of
Mr. Rajinder Singh, learned counsel for A-1 and of learned counsel \._..
for the State, we are unable to find any acceptable evidence connect-
c ing either of the appellants with the existence of any conspiracy. We
are further of the opinion that even taking the main parts of the pro-
secution case at their face value, no connection has been proved with
the destruction of the film and the two appellants. The prosecution
has, of course, produced some witnesses to show the existence of the

• alleged conspiracy or some sort of connection of the appellants with
the destruction, of the film but that evidence, as we shall show, falls
short of the standard of proof required in a criminal case. We realise
that the prosecution was seriously handicapped because the investiga-
tion started only after the J anata Government came into power in
March 1977, that is to say, about a year and a half after the offences
E in question were allegedly committed, by when naturally much of t11e
evidence would have been lost and even some of the important wit-
nesses exaniined by the prosecution had turned hostile and refused
to support its case. Despite these difficulties, the prosecution, has to
discharge its onus of providing the case, against the accnsed beyond
reasonable doubt. We, therefore, propose to deal only with that
F part of the evidence led by the prosecution which has been relied upo11
to prove some sort of a connection of the appellants with the alleged
destruction of the film.
In this connection, we propose to deal with the evidence in three·
separate parts-
G (1) the deposit of the positive print in the Auditorium
and its alleged transfer to the personal custody of
A-1;
(2) the arrival af thirteen trunks, containing negative and
other material related to the film at New Delhi from

• Bombay in pursuance of the orders of A-1 and
their transfer to 1, Safdarjuog Road, then to the
Maruti Complex; and
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, !.) 567

(3) the actual orders alleged to have been given by A-2 A
for burning the film in the premises of the Marnti
Complex which operation, according to the prosecu-
tion was carried out by the approver, PW 3, Kher-
kar, and other witnesses between the 10th and '.!4th
of November 1975.
B
Although there are other elements on which prosecution has ad-
duced evidence which is by no mean~ very convincing or consistent
but even if we assume those elements to be proved, if the three
aspects indicated above, are not proved the prosecution is bound to
fail.
c
We now proceed to deal with the first part of the case.

(1) The deposit of the prints at the Auditorium and its alleged
transfer to the personal custody of A-1.

In the Auditorium, PW 17, Sreedharan screened the film in order D
to show the same to PW 6, Murshed, on the 22nd May 1975 and
again on the next day at the instance of the Ministry of Information
& Broadcasting. Some private shows were also screened at 1,he
instance of PW 1, Amrit Nahata, though this was not permissible
under the Rules. It was also the prosecution case that PW 39,
Ghose and PW 61, C. K. Sharma met PW 17, Sreedharan and PW E
18, Bhawani Singh and examined the prints whicjl were then lcept in
the green room. Ghose then rang up Sreedharan and told him that
he was coming to the Auditorium to take delivery of the prints.
Accordingly, PW 39, Ghose is said to have arrived at the Auditorium
and the fourteen reels contained in cans were put on the back seat of
his car. PW 39, Ghose then went to Shastri Bhav~n and put the F
cans in the dicky of the staff car of A-1 in the presence of the driver,
Babu Ram, PW 33. Thereafter, when A-1 came, Babu Ram took
the car to 1, Safdarjung Road where the cans were unloaded and
kept in the office of R. K. Dhavan, Additional Private Secretary to
the !Jien Prime Minister. In support of this part of the ca~c. the G
prosecution examined PW 18, Bhawani _Singh, PW 33, Babu Ram;
PW 61, C. K. Sharma; PW 57, V. S. Tripathi, PW 60, R. L. Bandlish
.·""-. and PW 39, Ghose. So far as PWs 39, 57, 60 and 61 are concerned,
they did not ~upport the prosecution case regarding the transfer of the
prints to the custody of A-1 as alleged by the prosecution. So the
only witnesses to prove the factum of transfer were PWs 17 and 33. II
The prosecution also examined some other witnesses PW 1, Amrit
Nahata, PW 2, L. Dayal and PW 62, Burney to show that the transfer

/
568 SUPREME COURT REPORTS [1980] 3 S.C.R.

( A of the positives of the film to the custody of A-1 was carried out at
the oral instruction of A-1. PW 62, however, did not support the·
prosecution and thus, on this point, the only witnesses worth consi-
dering are P~s 1 and 2.
We would first refer to the evidence of PW I, Amrit Nahata.
B He stated that he was directed to deposit the positive print of the •
Films to Films Division Auditorium at Mahadev Road and consequently
he complied with the direction on 17-5-1975, and obtained a receipt.
The witness goes on to state that one of the factors which weighed with
him in withdrawing the writ petition he, had filed in the Supreme
Court was that he was persuaded and pressurised and threatened by
c A-1 to withdraw the writ petition. He, however, admitted in his
cross-examination that the process of persuasion and pl'essurisation
and threats was carried out not on one but on several occasions. He
then went to the extent of saying that the Minister (A-1) used to
talk to him in this connection in Parliament, in his office and some-
times even at Shastri Bhavan. He further stated that even in · the
D
Central Hall of Parliament be did not hesitate from threatening him.
The witness admitted that he never filed any written application before
the Supreme Court alleging the threats given to him 1>y A-1. He
further admits that after the Janata Government took over in March
1977 while be had written to Mr. L. K. Advani, who succeeded A-1,
E regarding the film, he made no mention of any such conversation bet-
ween him and A-1 about the threats, etc. Finally, he admitted that
no one was present in the office when he talked to Mr. Shukla. In
view of these statements, we find it difficult to believe the witness.
The entire version given by him is inherently imprnbabk, firstly, be-
cause of his failure to draw the attention of the Supreme Court to
·•I F the threats, etc. Secondly, it is impossible to believe that after the
Janata Government came to power and ·he wrote a letter to Mr.
Advani regarding the film, he would not mention that he had been
pressurised or threatened by A-1 when he was undoubtc<lly very much
interested in bis film being exhibited and bore a serious grouse and
animus against A-1 because he had refused certification for exhibition
G of his film. In these circumstances, we arc unable to place any re-
liance of the testimony of this witness so far as the allegation of •
threats, pressurisation, etc., made by A-1 is concerned. Thus, if his
evidence is rejected on this point, then excepting the testimony of
PWs 2 and 63, there is no evidence to ~how that A-1 had any con-
nection or link with the transfer of the positive print of the film .
. H
This brings us to the consideration of an important witness PW
2, L. Dayal, on whom great reliance has been placed by the learned
V. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 569

Sessions Judge. So far as PW 2 is concerned, he states that some-
time in the first week of November, A-1 called him and said that he
ha<l decided to keep .all material relating to the film in his personal
custody and that detailed arrangements for the delivery of the material
would be made by his personal staff and the work would be done by
a respectable officer. The witness further states that PW 57, V. S.
B
Tripathi, was also present at the time when this conversation between
the witness and A-1 took place. He further states that he had
apprised .PW 62, Burney, the Secretary, of the talk tie had with A-1.
Both PW 57 and PW 62 have not supported the witness on these
points and have denied the same. The witness had also stated that
he had called PW 39, Ghose and apprised him of the instmctions of c
the Minister for carefully and confidentially putting all material in the
personal custody of the Minister. Ghose, however, in his evidence
does not support the story of instructions by the Minister and denies
having been told anything of the kind by the witness. Of course, all
the three witnesses, namely, Tripathi, Burney and Ghose, had been
dedared hostile. The witness further goes on to state that he had D
called PW 4. Khandpur, who happened to be in Delhi and had told
him that all the film material pertaining to the film 'Kissa Kursi Kaa'
lying at Bombay had to be carefuJly and confidentially collected and
sent to Delhi. PW 4, however, clearly admits in his evidence that
the instruction which he had received was to send the material to the
Ministry of Information & Broadcasting. As we shall show, PW 2 E
appears to be deeply interested in the prosecution. Jn these circum-
stances, even Mr. Jethmalani, appearing for the State, frankly con-
ceded that he would not ask the Court to rely on this witness unless)
he was corroborated by some other independent evidence. In fact,
far from there being any independent evidence to corroborate the
.I'
version of the witness in regard to the instruction given by A-1, the
persons to whom the witness mentioned these facts, viz., Tripathi,
Burney and Ghose, have not supported him. Thus, so far as the role
played by A-1 on the first part of the case is concerned, this is all
the evidence produced by the pro,ecution and if this evidence is re-
jected, then it is not proved at whose instruction the film cans were G
transferred from the Auditorium to l, Safdarjung Road nor ha' it been
established that this was done with the knowledge of A-I.

Coming back now to the evidence of the transfer of the pos;tive
print from the Auditorium into the car of Ghose and therefrom to
the staff car of A-I at Shastri Bhavan and finally to l, Safdar.iung H
Road, the evidence led by the prosecution consists of PWs 17 and
33. The other witnesses examined on this point have not supported
570 SUPREME COURT REPORTS [1980] 3 S.C.R.

A the prosecution case. From the evidence of PW 17, it appears that
PWs Ghose, C. K. Sharma and Bhawani Singh met him and examined
the prints and then the prints were kept in the green room. Later,
the same day Ghose rang up the witness to inform him that he was
coming to take the positive print of the film which should be kept
ready. Thereafter, Ghose arrived and the prints were brought from +
B
the green room and placed in the back seat of car of Ghose. Ghose
thereafter drove the car but gave no receipt for taking the film. Half
an hour later, according to the witness, there was a telephone call
from Tripathi to enquire if the film had been delivered to Ghose.
The witness informed him that this had been done. It was also stated
c by the witness that a letter (Ext. PW 17 /E and E-1) was got written
by Ghose before he took the film in his car. It may be noticed here
that prior to the filing of the FIR an inquiry had been held by PW
40, Narayanan, into the manner how the prints of the film were miss-
ing and in that inquiry PW_ 17, Sreedharan, did not say at all that
Ghose had taken away the film. In this connection, the witne8' de-
D posed as follows:-

"Q. You did not tell Shri Narayanan that S. Ghose had
come to you in his car and you had delivered the film to him
in his car and he had taken it away?
Ans. No. I did not tell him like this (Voltd :-It was
E so as S. Ghose had asked me to say differently to Shri
Narayanan and I stated as advised by S. Ghose.)
Q. You know that enquiry had been ordered by Shri
L. K. Advani, Minister for Information & Broadcasting ?
Ans. Yes.
F
Q. And yet you deliberately told a lie before Shri
Narayanan?
Ans. Yes, because of S. Ghose."
Thus, the witness admitted that he spoke a lie before Narayanan
G merely because of Ghose. Further, even in his statement before the
police, the witness did not state that Ghose had come to him for
taking away the film on the same day, i.e., the' day on which Ghose
had telephoned that he would be coming to take the film. So far as
PW 39, Ghose is concerned, he has totally denied ,having told the
witness to keep the positive prints ready or that he ever took delivery
H of the prints from the witness and put the same in his car. Thus,
everi the prosecution case relating to the transfer of the positive prints
through PW 39, Ghose, to, I, Safdarjung Road becomes doubtful.
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 571

Evoo so, assuming that Ghose did take delivery of the positive prints A
that does not conclude the matter because the prosecution has further
to prove that the prints were taken away from the Auditorium at the
instruction of A-1 and then kept in the staff c~ of A-1 and taken to
1, Safdarjung Road with the knowledge of A-1. On this point, the
evidence of PW 17 is absolutely silent and he says nothing about it
nor was he competent to say the same. The only other witness PW B
33, Babu Ram, states that sometimes in. thee winter of 1975 PW 61,
C. K. Sharma, called him and told him that there was some luggage
( saaman) of Minister Saheb which was to be kept in his car and
asked him to bring the Minister's car close to where Ghose's car was
parked. The witness found 10 to 12 round boxes which were trans-
ferred to the dicky of the staff car. Thereafter, accordnig to the G
witness, PW 60, Bandlish, had a talk with Ghose and after, the Minis-
ter had come, the car was driven to 1, Safdarjung Road. On
reaching I, Safdarjung Road, the Minister went out of the car and a
person came and took, away the saaman. Thereafter, the witness
drove A-1 to other places. In. his statement before the police, the
D
witness did not state that PW 61, C. K. Sharma had told him that
the saaman of Minister Saheb (emphasis being on Minister Saheb)
was to be transferred to the dicky of the staff car. Both Bandlish
and C. K. Sharma have not supported the versiol} !Jf this witness and
have denied everything. Even taking the version of this witness at
itr face value, there is nothing to show that when A-1 boarded the E
staff car at Shastri Bhavan he w~s told either by the driver or by any-
body that the film cans had been placed in the dicky and were to be
taken to 1, Safdarjung Road or that they had been brought from the
Auditorium. Even when the car reached 1, Safdarjung Road, Babu
Ram never informed the Minister about the boxes having been, kept in
the dicky nor is there any evidence to show that the boxes, were un- , F
loaded from the dicky of the Minister's car, either in his presence, or to
his knowledge. Thus, all that has been proved is that the cans wern
transferred from the Auditorium to 1, Safdarjung Road. Takirig thei
evidence of PW 17 and PW 33 as also PW 18, Bhawani Singh at its'
face value, no connection between A-1 and the transfer of the fihn has,
been established. Thus, the prosecution has failed to prove that the G
positive prints of the film were transferred from the Auditorium to the
personal custody of A-1 or that the said transfer was done in accor-
·dance with his instruction or to his knowledge.

(2) The tramfer of negatives and other material reh1ted H
to the film from Bombay to Delhi and to 1, Safdarjung Road
and from there to Maruti Complex at the order of A-1
572 SUPREME COURT REPORTS [l 980] 3 s.c.R.

A So far as this part of the prosecution case is concerned, the evi-
dence is wholly insufficient to attribute any knowledge or ulterior
motive to A-1 in directing the negatives to be sent from Bombay to
Delhi. Some evidence has no doubt been adduced by the prosecution
to show some amount of criminality on the part of A-1 but that evi-
B
dence, as we shall show, is not very reliable.

To begin with, according to PW 6, Murshed, A-1 said that there
was some sort of an informal discussion between A-1, Mr. A. J.
Kidwai, the then Secretary in the Ministry of Information & Broad-
casting and the witness when A-1 directed that the film be banned and
seized, but that no action was taken by the witness until the file
c reached him. The witness added that on July 7, 1975 there wa~
another meeting attended by Sarin and other officers which was pre-
sided over by A-1 and in this meeting a final decision was taken that
the film should be taken over and mention was made that the Defence·
of India Rules should be pressed into service. The witness further
stated that nltimately in the Coordination Committee meeting which
D
was held on July 10, 1975, and was also presided over by A-l, the
earlier decision taken by the Government was reiterated. The wit-
ness then goes on to state that he passed the order Ext. PW 6/A-9
on July 11, 1975 which directed that the certificate for public exhi-
bition was refused and the said order was communicated to PW l,
E Amrit Nahata. This was followed by another order Ext. PW 6/A-10
which forfeited the film Kissa Kursi Kaa. Both these orders were
approved by the Minister which had to be done in consequence of
the decision taken by the Government. After the film had been
banned and forfeited, the seizure of the film material at Bombay be-
came a necessary consequence and accordingly a letter dated July
F J 4, 1975 was issued under the signatures of PW 39, Ghose to thei
Chief· Secretary, Government of Maharashtra for seizure of the film
material relating to the film and requiring him to deposit the same
with the Board.
The next questi6n that arises is as to why the negatives and other T
G material of the film were directed to be sent to Delhi. It is obvious
that once the film was banned and forfeited and ·action under the
Defence of India Rules had to be taken, it was in the nature of a
routine operation that the negatives and other material of the film
should be placed in the custody of the Ministry of Information &
Broadcasting. This appears to us to be the ·main reason why A-1
H directed that these materials may be sent from Bombay to· Delhi. In
order to incriminate the Minister the prosecution urges that this was
done by A-1 to get the negatives, etc., in his personal custody so that
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali,!.) 573

he would be in a position tQ destroy the same. On this, there does
not appear to be any clear evidence and even the Sessions Judge has
based his findings largely on speculation.
To begin with, L. Dayal, PW 2, who was then attached to A-1 as
Joint Secretary (Films) states that on 6-11-1975 A-1 tc;>ld him in the
presence of Tripathi, PW 57, that A-1 had decided to keep all mate-
rial relating to the film in his (A-l's) personal custody, that detailed
arrangements for the delivery of the material 1would be made by
A-1 "s personal staff and that the work had. to be done by a responsible
officer. The witness adds that he conveyed the decision to the Sec-
retary and to S. Ghose, PW 39, and then called PW 4, Khandpur,
Chief Producer, Films Division, Bombay who happened to be in
c
Delhi and asked him that all the material pertaining to the film
'Kissa Kursi Kaa' lying at Bombay had to be carefully and confiden-
tially collected and sent to Delhi. At the time when this talk took
place Ghose and Tripathi were present, according to PW 2, who
then rang up Vya~ (Chairman of the Board) and gave him similar
instructions in the presence of Ghose and. Tripathi. However, neither
Tripathi nor Ghose supports PW 2 on the point that he had asked
Khandpur to collect the material of the film 'carefully and confiden-
tally' which particular words were attributed to A-1 to show his cri-
miual intent. In this connection, Ghose, PW 39, wbo was declared
hostile to the prosecution, stated: E
"As I was coming out of the room of Shri Burney, I
dropped in Shri Dayal's room which was in the same corri-
dor with a view to inform him that I had gone to the Audi-
torium and checked the film and had found the film intact.
I also told him that I had informed Shri Burney accordingly.
F
I found Shri K. L. Khandpur also sitting in the room of
Shri Dayal. Shri Dayal asked me to take my seat. After
_a few moments I found Shri V. S. Tripathi walking into the
room of Shri Dayal. He also took his scat. When I enter-
ed the room Shri Dayal was already conversing with Shri
l
Khandpur. Looking at us, namely, myself and V. S. Tripathi G
and Shri Khandpur. Shri Dayal generally enquired where
filmic material was lying at Bombay. Shri Dayal also gave
direction to Shri Khandpur for collecting the filmic material
at Bombay with a view to transporting it from Bombay to
Delhi. I do not recall Shri Dayal taking the name of the
Minister or the Secretary at the time of the discussion. I H
also do not recall whether he mentioned word secretly
during this discussion. My feeling was that the entire
. 574 SUPREME COURT REPORTS [1980] 3 s.c.It.

responsibility for the collection and transportation of the
filmic material from Bombay to Delhi was left with Shri
. K. L. Khandpur."

The stand of Tripathi, PW 57, who was also allowed to be cross-
examined by the prosecution was as follows:-
"Shri Dayal gave instructions to Shri K. L. Khandpur
in my presence and that of Shri S. Ghose to shift the nega.-
tive material of" film Kissa Kursi Kaa from Bombay to
Delhi. At the request of Shri Khandpur, Shri Dayal
also spoke to late Shri V. D. Vyas. about this matter and
c told him on telephone that the negative material was to be
shifted from Bombay to Delhi and that the transportation
arrangement would be explained by Shri Khandpur to him
on hls return to Bombay. Roughly this is all that I re-
member and in addition that if was early in the afternoon."

The witness was specifically asked whether in his presence A-1
gave instructions to L. Dayal, PW 2, that he ( A-1) wanted the posi-
tives and negatives of the film in his own custody immediately and con-
fidentially. He denied the correctness of the assertion and was con-
fronted with the following portion ('E' to 'E') of his statement made
on the 25th April 1977, to K. N. Gupta, Deputy Superintendent of
E Police, CJ.A., New Delhi :
"Later, some time in the afternoon, the Minister called
me inside his room. Shri Dayal was also inside and I noted
that discussion was going on about the film 'Kissa Kurs\ Kaa'.
The then Minister of I & B, gave instructions to Shri L.
Dayal, Jt. Secy. (Information) in my presence that hf( wanted
the positives & negatives etc. of the film, "Kissa Kursi Kaa"
to be handed over to him, in hls custody immediately & con-
fidentially. The Minister also said that the arrangements for ·
trnnsportation will be made by him and Shri Dayal should
get in touch with the personal staff for this."
G
The witness also de!lied the cOJ[rectness of the assertion that in bis
presence later on Shri Dayal, PW 2,1 had told Shri Kbandpur, PW 4
that the film should be brought from Bombay to Delhi "very carefully
without telling anybody about it". He was confronted with portion
'F to F' of hls said statement to the police where the assertion appears.

Even Khandpur, PW 4, who has fully supported the prosecution; has
not said anything in his evidence to indicate that PW2 had said that

..
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 575

the materials should be 'carefully and confidentially" collectf'<l and sent
to Delhi. On the other hand, PW 4 says thus : -
"I was called by L. Dayal, the Joint Secretary (ill his
office. I was asked to make arrangements for collecting all
material pertaining· to film Kissa Kursi Kaa available. af
Bombay and to send the same to Delhi. B

I have seen file CFD/51 shown to me, Ex. PW 4/E. It
is named "Confidential Material Received from C.B.F.C.
and sent to Mi11istry of I & B' in November 1975". This file
pertains to Films Division Bombay. This Jile pertains1 to the
film materials of Kissa Kursi Kaa. Another file pertaining c
to this film is the one: which contains Exts. PW 4/ A to PW
4/C."
The file Ext. PW 4 /E was labelled as 'Confidential' and showiO that the
film material was sent to the Ministry of Information & Broadcasting
in November 1975. But there1 was nothing to indicate· in the file! or in
the evidence al' PW 4 that the materials and negatives, etc., were to be
sent to the pers011al custody of the Minister. As the film was banned
and forfeited, there was nothing incongruous about the transfer of the
·materials to Delhi being treated as an official and confidential matter
and even if PW2 had told PW 4 that the film material shonld be dis.-
patched "carefully and confidentially'" that would not show any criminal
intent on the part of A-1.
In order to show that A-1 took a somewhat unusual interes~ in the
dispatch of the negatives. and other material of t11e film from Bombay
to Delhi,. it is further the easel of the prorecutiolli that Tripathi who was
Special Assistant to A-1 was sent expressly to receive the materials at
New Delhi Railway Station and make arrangements for their transpcit.
But Tripathi categorically stated that he never went ta the Railway:
Station for the purpose of receiving the film material, etc. On the
other hand, PW 2 states that on 9-11-1975 PW4, Khandpur informed
him on telephone from Bombay that the film material was being sent
from Bombay to Delhi by Western Express and would be reaching
G
Delhi on the next day and that two officers, one of them being Kane,
PW 5, were accompanying the material. PW 2 adds that he then{ rang
up Ghose and asked him to get in touch with Tripathi for making the
necessary arrangements for transport and delivery of the material. The
witness goes on to state that on the 10th November 1975, PW 39,
Ghose, came to him and reported that the film material had arrived and H
had been brought in tempos arranged by A-1. Ghose, however, hii.%
not supported this witness on this aspect of the matter, Reliance was,
576 SUPREME COURT REPORTS [1980] 3 S.C.R.

therefore, placed on the evidence of PW 5, Kane, to show that when
he reached Delhi along with the film material, Tripathi was there to
receive the same. It is not disputed that Tripathi was not known lo
PW 5, Kane, before the 10th and that by the time the witness '"W' him
at the New Delhi Railway Station he had see11 him only once i11 Bom-
bay. The witness does state that his• pointed attention was drawn to
'B Tripathi because he had asked him to settlo the payment of charges to
the coolies and that but for this his attention would not h" v~ been
drawn to Tripathi. He, however, admits that in his statement before
the Central Burean of Investigation, he did not mention the fact that
Tripathi had asked him to settle the matter of the payment of charges
to the coolies. Thus, the existence of the only circumstance on the
·C basis of which the witness could have identified Tripathi becomes
doubtful and in view of the categorical statement of Tripathi that; he
never went to New Delhi Railway Station on the 10th of November to
receive the film, it is difficult to accept the evidence of ,PW 5 that
Tripathi was the person present at the station. The possibility that
the witness committed some mistake in identifying cannoli be ruled out.
Moreover, the identification of Tripathi by the witness for !he first time
in the court withont being tested by a prior test identification parade
was valueless. Besides, the witness, admits that in the note Ext. PW
4/E-2 he did not mention Tripathi or ~ny other person along with
Ghose to have been present at the New Delhi Railway Station. Thus,
even on the question of the arrival of the material of the film at New
Delhi no direct coll1leclion with A-1 has been established by the pro-
secution. In fine, it is' not prayed by the prosecution that Tripathi wa>
present at the Railway Station to receive the film and hence it cannot
be said that A-1 took an unusua~ interest in seeing that the film is pro-
perly brought from Bombay to Delhi and placed in his custody.
F
Coming back to the evidence of PW2, there is yet another cir-
cumstance which he proves and which merits some consideration.,
According to the witness, in t11e special leave petition filed by PW 1,
12th March 1976 was fixed for screening the film. The witness adds
that he tock instructiqn, from A-1 as to what should be done when A-1
asked him to inform the Supreme Court through an affidavit that efforts
had been made to trace the prints of the film at Bombay as also at
Delhi but that there were no chances of their becoming available. The
witness says that he was also directed to mention in the affidavit that
such misplacements had. often occurred in the past, and that he passed
on this information to the Secretary, Mr. Burney who suggested that
u the orders of the Minister should be carri5'd out. In consonance with
the instruction, Ghose filed an affidavit before the Supreme Court on
the 22nd March 1976 but the Hon'ble Chief Justice emphasised the
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 577

importance of making the, film available for viewing by the Judges. The A !
witness recorded a note Ext. PW 2/A-17 to bring the matter to the
notice of the Minister. Ultimately, however, as PW 1, Amrit Nahafa,
·withdrew the petition nothing further happened. It appears that while
the petition was pending in the Supreme Court, contempt proceedings
• were taken ag~inst some, of the oJlicers including PW 2 who also filed
four affidavits, one of them on the 28th November 1977 and the other 0
three on the 28th February 1978. These a!lidavits are ;Ext. PW
2/B-1 to B-4. In these affidavits he wanted to prove that as the film
had been mixed up with lot other films received in connection with
Fifth International Film Festival, the material of the film Kissa Kursi
Kaa was misplaced, and that is a stand which comes into direct con-
flict with the testimony of the witness in court in which the entire
c
blame is shifted to A-1 but which again runs counter to a11 assertion
made earlier by the witness in his own hand. That assertion appears
in the form of an amendment to a draft of a letter (Ext. PW 2/DE)
to be sent to Mr. V. P. Raman, Additional Solicitor General and reads :
'In spite of efforts the film has not been found'. Th<i witness admits D
clearly that this statement was false to his knowledge. A witness who
could go to the extent of making intentionally false statement cannotl
be relied upon for the purpose of convicting the appellant. On his
own showing, he was fully collaborating with A-1 in a criminal design
and was therefore, no better than an accomplice whose testimony can-
not be accepted, in any material particular in the absence of corrobora- E
tion from rdiuble sources. Even Mr. Jethma"lani, the erstwhile senior
counsel for the pm;ecution conceded the correctness of this proposi-
tion. On ~n appreciation of the evidence of PW 2 and other factors
discussed above, his evidence has not only not been corroborated but
definite! y contradicted by other witnesses, circumstances and docu-
ments. F

PW 63, K. N. Prasad was the Additional Secretary in the Ministry
of Information & Broadcasting. He stated that in ~.1arch 1977, A. K.
Verma, the then Joint Secretary wanted to know whether the Govern-
ment had any inherent power to destroy property which had beeri

. seized or forfeited, and also disclosed that the enquiry was made in
connection with the film 'Kissa Kursi Kaa'. The witness further stated
that after two or three days Verma and PW 39, Ghosc came to his
G

room and asked the same question. The witness further goes on to
state that he was infonned by his P.A. that he was required to attend
a meeting at the residence of the Minister (A-1), that when he entered
·the office at the residence of A-1, he found PW 62, Mr. Burney, R
Secretary to the Ministry of Information & Broadcasting, sitting there
.and that Mr. Burney (PW 62) asked the witness what the legal
578 SUPREME COURT REPORTS [1980] 3 S.C.R. ..
A position was about the right of the Government to destroy forfeited pro-
perty. · At that time, according to the witness, Tripathi, Mr. Burney
and A-1 were present. He, however, admits that A-1 did not ask any
particular question.
From the testimony of PW 63 the prosecution seeks to draw an
B inference that it Was A-1 at whose instance Verma,.Ghose and Burney
had asked for the advice1 of the former (PW 63). Now, A. K. Verma
has not been examined as a witness and his statement ( seekingi the
advice of PW ( 63) is not, therefore, admissible in' evidence, while
both Gl10se and Burney have denied that any such conversation as has
been deposed to by PW 63 ·took place between the: latter and the wit-
c nesses in the presence Oil' A-1 . In fact, a' specific suggestion was put
to Burney (PW 62) in: the following terms :
"Q. :When Shri Nahata asked for the return of the film
material, did it happen· that you discussed the matter regard-
ing availability and return of the film material with Shri
B Shukla at his official residence and during that discussion
Shri K. N. Prasad and Shri A. K. Verma had also come there
and Shri V. S. Tripathi, Special Asstt. to thel Minister was
also present ?"
His answer was an emphatic no.
I: Besides, the story given out by the witness does not appear to be
very plausible, for it does nou stand to reason that A-1 would depute ...
no less than three officers (Verma, Ghose and Burney), one after the
other, to obtain advice of PW 63 when A-l could have had no diffi-
culty in obtaining the advice himself. And then how was PW 63
selected as a Specialist in the concerned branch of law ov,lll" the' head
· F of superior officers, even if it was considered hazardous to enlist the
services of a competent lawyer? We are, therefore, unable to place
reliance on the evidence of this witness on this point. From a discus- ·'+-- ,_
sion of the circumstances mentioned alxwe', wi:J conclude that the prose-
cution has failed to prove that the film materials brought frolll Bombay
to Delhi were placed in the personal custody of A-1 or that A-1 had
.,
G them transferred to No. 1,, Safdarjung Road or to the Maruti Complex. ~

Another link in the. chain ofl prosecution evidence (the existence. of Jr
which seems to have been accepted by the learned Sess;ons Judge) was
that two temp06 belonging to the Maruti Company were sent to the

H
New Delhi Railway Station where the thirteen trunks which arrived by
the Western Express were loaded therein and were taken to 1, Safilar-
I
jung Road before being transported to Maruti Complex where tliey
were unloaded, kept and later on. destroyed. It was also alleged by
1..
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, !.) 579

the prosecution that a raid oUhe Maruti Complex carried out in 1977 A
Jed to the recovery of the lid of a trunk, an empty can v&ich earlier
contained part of the film material and a gunny bag to the inside o~
which were found sticking scraps of paper. The investigators also
claimed Jhat a few miles away from the Maruti Complex some round
cans were recovered from a nal/ah. The learned counsel for the
defence submitted that the allegations about the trunks being taken to B
Maruti Complex and the recoveries being made were false and addressed
to the court lengthy arguments in this behalf. It is, however, not
ne.:essary for us to go into these details at this stage because assuming
for the purpose or argument that the trunks were brought to the Maruti
Complex, and that the film material was destroyed unless A-r Oil" A-2
were shown to be connected with the transport or destruction of the c
material, the char~ against the appellants cannot bd held to be proved.
(3) The burning of the film 'Kissa Kursi Kaa' in, November fCJ15,
at Maruti Complex at the orders/instructions. of A-2
In support of this part of the prosecution story, reliance was placed
mainly on the testimony of Khedkar (PW 3) who is thei approver., The D
effort of the prosecution was to establish that on instruction& given by
A-2 the film material was burnt inside the Maruti Complex on two
consecutive nights and that the fact was reported to A-2 qn each of the
two following mornings. The approver was the Security Officer in/ tbe
Maruti Limited at the relevanU time and the assertions made by him in
E
this behalf may be. split\ up as follows : -
(a) In the middle of November 1975, A-2 senv for the
approver and told him that some boxes containing
films were lying ht the stores, thai the films were to
be destroyed when the workers were away and: that
the approver would get the keys of the locks on t!ie p
boxes on the next day.
(b) On the next day one of the security guards who
used to accompany A-2 handed over a sealed packet
of paper wrapped in cloth to the approver. On, the
' same day the appr01Ver directed his assistant named
K~nwar Singh Yadav, PW 32 to meet the approver
G
(in the Maruti Complex) at 9.00 p.m. along with
watchman Om Prakash, PW 31. Kanwar Singh
Yadav, PW 32 met the approver at 9.30 p.m. They
reached the factory gate where watchman: Om PralCash
PW 31 was waiting for them. The approver signed H
th.e key register and obtained, the key of the General
.J \ I
Store. The party of three opened the store and
.. 17-289SC1180
580 SUPREME COURT REPORTS [1980] 3 S.C.R.

A found lying therein the thirteen boxes containing the
film material. The boxes were open~d with the keys
which were taken out of the sealed packet mentioned
earlier. Each box was found to contain l 0 or 12 cans
having film spools inside them. Each can bore 'a
B , label with the legend 'Kissa Kursi Kaa'. The, first lot
of the films was removed to a nearby pit and was
burnt there, the operation lasting from 10.30 p.m. to
2.30 p.m. watchman Om Parkash PW 31 however
left the place at about 11.00 p.m. becausei he felt
giddy.
c {c) Next morning the approver reported to A-2 that the
work had been carried out in part only and that it
would be completed on the night foalowing, which was-
done from 10.00 p.m. to 2.00 a.m.
( d) Ne:itt morning the approver again made a report to
A-2 telling him that the job had been completed.
D
-Learned counsel for the defence contended that the stand taken
by the approver could not be accepted at its face value and had to be
rejected lock stock and barrel. On a thorough consideration of the
evidence we find that the contention well-based as we shall preser:Hy
show.
E The film material, according to the case of the prosecution, is said'
to have reached Maruti Complex on the 10th of November 1975. After
the 23rd November,. 1975, Khedkar PW 3, on his showing, went away
on leave. The period during which the film is said to have been burnt
thus lies between the 10th and the 23rd of November 1975. Further-
F more Khedkar, PW 3 has firmly asserted that on the first of the two
nights on which the burning operations were carried. out, watchman
Om Prakash, PW 31 was on duty from 2.00 p.m. to 10.00 p.m. He ,,____
was e:itamined at length in relation to duty rosters P~22 and PW 32/2
which were admittedly prepared by him. Duty roster exhibit P-22
covers the entire month of November 1975, and according to the en-
G tries appearing therein watchman Om Prakash, PW 31 was to be on
l I
duty during the whole of that month in the third shift only, i.e., dally ~
from 10.00 p.m. to 6.00 a.m. The approver however explained that
the roster could be changed from time to time according to the exigen- ~
cies of the situation. He averred that on the 15th of November 1975,
.~
which was a Saturday and therefore an off-day for watchman Om .
B · Prakash, PW 31, the latter took over duty from 2.00 p.m. to 10.00 p.m.
as a substitute for watchman Tarachand. A similar arrangement was ,,
made on the 18th of November 1975, when watchman Om Prakash,

f
v. c. SHUKLA v. DELH! ADMN. (Faza! Ali, J.) 581

PW 31 changed places with watchman Ramdular and went over from A
the 3rd to the 2nil shill (2.00 p.m. to 10.00 p.m.). As it is, tire
f 15th and the 18th of November 1975, were the only two days in the
month on which watchman Om Prakash, PW 31 was on duty during
the second shift as a special arrangement. For the rest of the days
during the month he was admittedly never on duty in that shift. The
period during which the film· was destroyed is thus further narrowed
down so that the first operation of burning could have taken place on
•
the night of the 15th of November or on that of the 18th of November
1975, and on no other date.
Here we may refer to another aspect of the matter. Evidence has
been produced to show that A-2 Mt I?elhi by air at 7.50 a:m. on the c
17th of November 1975 for Hyderabad, and arrived back at Delhi at
8.30 p.m. the same day. He again took off at 6.40 a.m. on the 19th
of November 1975, for Sikkim and returned to Delhi not earlier than
11.10 a.m. on the 23rd of November 1975. On both occasions he
travelled as a member of the party of the then Prime Minister, his own
mother,, namely, Shrimati Indira Gandhi. The evidence of Dr. K. P. D.
Mathur, DW 3, is categorical in this behalf and is supported by the
pass~nger manifests (Ext. DW-3/A and DW-5/ A) prepared in relation
to the journeys which contain the name of A-2, and other documents
which need not be mentioned here. We regard his testimony as con-
clusive as was done not only by the learned Sessions Judge but also by
the Special Public Prosecutor who made a statement at the trial that E
that testimony be accepted by the prosecution in toto. In this view of
the matter the prosecution has to prove that a period of four days in
between the 14th aru! the 18th of November 1975, was such as A-2
was available in Delhi during day time on the first, third and fourth of
such days.
F
Now, as pointed out already, the burning could have taken place
oll'!y on the 15th or the 18th of November 1975, if the approver and
the duty rosters prepared by him are to be believed. The 18th of
November 1975, has to be excluded for the reason that on the two days
following A-2 had to be shown to have been in Delhi (for receiving the
report about the destruction of the material from the approver) which G
he definitely was not. The 15th of November 1975, as the first night
of the burning operation also does not click with the prosecution case
because, although the report about it could have been made to A-2 on
the next morning (inspite of the fact that it was a Sunday and therefore
a closed day for the factory), A-2 was not in Delhi or anywhere near B,
it throughout the 17th so that the story of the report made to him by
the approver about the second part of the burning operations loses
582 SUPREME COURT REPORTS [1980) 3 S.C.R.

A weight. No other dates being in point, the story propounded by the
approver is negatived by reference to unimpeachable documentary and
circumstantial evidence,. although it may be further noted that neither
·Kanwar Singh Yadav, PW 32 nor watchman Om Prakash, PW 31
supports the approver's version and each one of .them was declared
hostile to the prosecution.
B
The recoveries said to have been made during investigation have
also not impressed us. As stated earlier the incriminating articles said
to have been seized are a lid of a trunk, an empty can, a gunny bag-
all from inside the Maruti Complex-and a few cans from inside a
nala lying a few miles away. These recoveries are sought to be connec-
c ted with the destruction of the film on the basis of the following aver-
ments forming part of the testimony of the approver :

"It was after the elections held in March 1977, that Sanjay
Gandhi who was, then Director met me in the factory hall.
Kanwar Singh Y adav was also there. Vijay Sharma,, Bus
D Body Manager, was called there. Sanjay Gandhi asked us to
collect all the damaged trunks with the contractors and to
deposit them in Bus Body Store. We cculd collect 12 out of
13 trunks mentioned above along with four or five other big
trunks. These were deposited in Bus Body Store. Later on
I found them shifted to Press shop store. A couple of days
E
thereafter, Kanwar Singh Yadav, Sanjay Gandhi and I went
inside the General Store. We walked down to Bus Body
Store. There Sanjay Gandhi asked Panna Lal, Bus Body
Supervisor and in charge Bus Body Store, to ccllect all the
damaged locks available with them. Panna Lal passed on the
F · order to Om Prakash who was Bus Body Clerk Incharge
Stores. About 25 damaged locks were collected. These in-
cluded Harrison, Tiger and Godrej Locks. Godrej locks were
4 or 5 . Sanjay Gandhi asked me to get all those collected
locks melted in a foundry and I got them melted . . . . Ram
Lakhan was Incharge of the foundry and I handed over the
G collected locks to him .... Thereafter, scrapping of the trunks
and their removal was performed by my Asstt. Kanwar Singh
Yadav and he told me about that. Kanwar Singh Yadav told
me that Sanjay Gandhi had asked him to scrap the trunks and
cans and to dispose them off. He told me that he cut the
trunks into pieces. and threw them into the iron scraps which
B •were sold to different contractors. As regards the cans, he
told me that he had damaged the cans and thrown them at
different places on Rajasthan Highway and Rajasthan Bye-
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 583

pass .... He told me that the trunks had been cut into pieces A
and cans had been damaged in the Press Shop."
f
This story is inherently improbable. The thirteen trunks which
admittedly had no marks of identification on them and were of the
• ordinary type available in any market are said to have been shredded
and the locks-which again are available in plenty everywhere-are B
alleged to have been melted in the foundry but, strangely enough, the
cans which had on them labels carrying the legend 'Kissa Kursi Kaa'
were subjected to a much milder treatment and were merely pressed
and then thrown away at various places on the Rajasthan Highway and
Rajasthan Byepass to which Kanwar Singh Yadav, PW 32 had to make
journeys off and on. It is not disputed that if the cans were to be
shredded or melted the operation would not have presented any diffi-
culty whatsoever in view of the facilities available at the Maruti factory.
And, if that be so, surely any persou who wanted to obliterate evidence
of the commission of a serious offence would see to it that the material
of the cans was so transformed as to be impossible of identification.
There is no reason why all of them should not have been melted into tJj
lumps, or in any case shredded beyond recognition. And we also do
not see how just one can would be left intact when so much care was
bestowed on Operations Oblitration. In fact, it may have been much
easier for the cans to be shredded or melted than for them to be first
pressed and then transported to far off places and throw'n away there.
In this view of the matter we need not pursue this part of the case any
E
further.

Thus, on a complete and careful examination of the circumstances
and the evidence, mentioned above, even taking the sub-stratum of thei
prosecution case at its face value, the prosecution has not been abl(1 to
F
prove either that there was any existence of any conspiracy between A-1
and A-2 to destroy the film 'Kissa Kursi Kaa' by burning it or to
commit any other offence in respect of the film. There is no evidence
to show that there was any meeting of minds between A-1 and A-2.
We have also found that1 even on the first two parts of the prosecution
case, the allegation of the prosecution that the positive prints were
removed at the instance or to the knowledge of A-1 or that the nega-
tives and other materials of the film were sent for by A-1 and kept in
his personal c;ustody has not been proved. The mere fact that A-1
decided to ban the film and refused certification for public exhibition
and passed orders for seizure of the film and its transfer to the custody
of the Ministry of Information & Broadcasting does not disclose any B
offence. We have already shown that the decision to ban the film was
not taken by A-1 secretely or clandestinely but after a full-fledged
584 SUPREME COURT REPORTS [1980] 3 S.C.R.

A discussion in the Coordination Committee meeting and it is proved
that such meetings are usually attended by senior officers of various
Ministries, as deposed to by K. N. Prasad, PW 63. Fmther, that part
of the case which relates to the burning of film material rests solely
on the uncorroborated testimony of the approver and is negatived in
so far as the role therein of A-1 is .concerned.
B '
We may mention here that a lot of evidence has been produced
by the prosecution to show : -
(a) that the positive print of the film found its way into
the· luggage compartment of the car in which A-1
then travelled to the Prime Minister's house where
c the print was unloaded by someone in the absence of
A-1; a'nd
(b) thatthe negatives and other material relating to the
film were taken in a tempo or two to the Prime
Minister's residence and from there to the Maruti
D Complex where they were stored beforii their
destruction.
We have considered it purposeless to go into these factors for the
reasons that the connection of A-1 or A-2 therewith remains unproved
as discussed above. Had these factors provided circumstantial
E evidence o'n the basis of which alone the charge against either A-1
or A-2 could be held established it would have been necessary for
the court to sift the evidence produced in support thereof. But that' is
definitely not the case, for, if either or both of the factors are proved,
the inference of guilt of either A-1 or A-2 does not necessarily follow.
For circwustantial evidence to furnish evidence of guilt it has to be
such as it cannot be explained on a'ny other reasonable hypothesis
except the guilt of the accused whlch is not the case here because
appellants A-1 and A-2 coulq not be said to be the only persons
interested in the destruction of the film if it was as abnoxious kl the
then Prime Minister or as critical of the: functioning of the then
Union Government as the prosecution would have us believe. The
G film and all the material relating to it no doubt appear to have
vanished into thln air but then neither A-1 nor A-2 can be held
responsible therefor, in the absence of proof in that behalf-proof
which would exclude all reasonable doubt.
The prosecution having thus failed to prove the case against the
a· appellants, their appeals are allowed, the convictions recorded against
and the se:ntences imposed on the appellants are set aside and they
are acquitted of all the charges framed against them. Both the appel-
v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J.) 585

!ants who are on bail shall now be discharged from their bail-bonds. A
In view of the acquittal of appellant No. 1, Shukla in Criminal appeal
f No. 494 of 1979 and appellant No. 2, Sanjay Gandhi in Criminal
appeal No. 493 of 1979, Criminal appeal No. 492 of 1979, filed by
the Slate is dismissed. In view of the fact that we have made no com•
ments on the conduct of the investigation or on Mr. N. K. Singh, no
•
order need be passed on the application filed by him.

S.R. Cvl. App. 493 & 494/79 allowed.
Cvl. App. 492/79 dismissed.

/

' .