Holding

The President need not seek a prior fact‑finding report; the Supreme Court must itself examine the facts and may delegate evidence recording, and the inquiry under Article 317(1) includes determining whether the alleged misbehaviour is proved and warrants removal.

Summary

The President referred a question under Article 317(1) of the Constitution concerning whether a member of the Punjab Public Service Commission, Gopal Krishan Saini, should be removed for alleged gross misbehaviour after allegedly slapping the Chairperson, Santosh Chowdhary. The Court held that the President is not required to obtain a preliminary opinion from any other fact‑finding body before making the reference. The Supreme Court’s inquiry under Article 317(1) is not limited to a mere legal test but must examine the factual matrix itself to determine if misbehaviour is proved and warrants removal. The Court also ruled that affidavits alone are insufficient and that parties must be allowed to cross‑examine witnesses, with evidence recording delegated to an Additional District and Sessions Judge. Order XXXVIII, Rule 2 of the Supreme Court Rules empowers the Court to summon witnesses, and Order XLVII, Rule 6 preserves its inherent power to act ex debito justitiae. Accordingly, the Court set procedural directions for the evidence‑recording process and will render its opinion after the full evidence is taken.

Issues considered

The President must first obtain a fact‑finding report before referring a matter under Article 317(1).
The scope of the Supreme Court’s inquiry under Article 317(1): whether it is limited to a legal determination of misbehaviour or includes full factual investigation.
The appropriate procedure for taking evidence in a reference: affidavits alone versus cross‑examination, and whether the Court may delegate evidence recording.

Legislation cited

Constitution of Indias. Article 145, s. Article 317(1)
Indian Evidence Act, 1872s. Section 146(3)
Supreme Court Ruless. Order XLVII Rule 6, s. Order XXXVIII Rule 2

Subjects

Article 317Public Service CommissionRemoval of memberMisbehaviourSupreme Court referenceEvidence procedureCross‑examinationSupreme Court Rules

Judgment

639

SPECIAL REFERENCE NO. I OF 1983
A
(Y. V. CHANDRACHUD, C.J., R. S. PATHAK AND
SABYASACHI MUKHARII, JJ.

August_ 17, 1983

Constitution of India, 1950-Artic/e 317(1)-Scope of-Allegation of B
assault on the Chairperson by a Member of Public Service Commission-Reference
by President-Procedure to beftJ/lowed-Supreme Court Rules-Order XXXVlll
rule 2---Scope of

The Chairperson of the Punjab Public Service Commission made a
complaint to the President of India alleging that a certain member of the
Commission had committed gross misbehaviour towards her by slapping her
c
on her face in the ·presence of three other members of the Commission.· Jn
rxercise of the power conferred by Article 317(1) of the Constitution, the
President had referred for co'nsideration of this Court the question whether on
the ground of gross misbehaviour the n1ember ought to be removed from the
office of Member of the Public Service Commission.
D
Certain persons who claimed to have knowledge of the incident filed
their affidavits.· The Member's wife, who had also filed an affidavit, alleged
that the then Chief Minister was not happy with her husband's appointment
as a member of the Con1mission, that the Chairperson·s -husband, who was
running dasses for training students for the Public Service Co1n1nission exami-
nations, wanted certain students of his to be favoured in these examinations E
and that when her husbap.d refuScd to accede to the _request he was falsely
implicated in this incident.

It was contended on behalf of the Member that before making th.e
reference the President (1) ought to. have referred the case to a fact finding
body to ascertain whether a primafaci"e case had beeD made out for obtaining F
the report of this Court on the question of alleged misbehaviour and (2) the
function of this Court is limited to determining whether the person concerned
was guilty of misconduct of such a nature as would require his ren1oval from
the office of Member of the Public S~rvice Commission.

HELD : On the facts of this case, obtaining a preliminary opinion of G
yet another biJdy would be need.less duplication of work and avoidable waste
of public tilne and mOney. The power of the ·President to make a reference
to this Court under Article ,317(1) js not subject to the condition precedent
that he must first have the facts examined by son1e other body or authority.
There is no justification for reading into the Article a provision which is not
to be found in it, especially a provision in the nature of a condition precedent. R
The material before the President was of a kind and nature enough to justify
his opinion that a prilnafacie case existed for an enquiry and report b~ thl$
Court. [643 G-H, 644 A, C·Dj
SUPREME COURT REPORTS (1983] 3 S.C.R.
(2) Th«i? e~quiry which this Court is _required to hold is not into the
1
A limited questioii Whet_h'er tiie charge of rDisbehaviollr was made out and
whether the misbehaviour was of such a nature as to warrant his removal from
office but iS all e~qUfry· illto the.facts thein~elveS and· facts ~lso sci as to enable
this Court to pronounce Whether the aitegatioD.s levelled against the Chairman
or:. Member were proved at all. The purpo!ie of this Article is to ensure
independence of the members and to give protection in the matter of their
tenure. Certain dignitaries of the State like Judges of this- Court and High
·B Courts. the Comptroller and Auditor O-eneral and the Chief Election Com-
~iSSiOner can be rCffioveci from thCir Offices ollly in accordatlce ~ith the
PrOc,e'dUre prescribei:t'hi.·tfte r~levant proVisions of the Constitutron. ·Jn fhe
CaSe of MCnlb.ers Or the Pciblic SerVice Commission a higller d.egree of proteC..
tion is given by the ·elimination of political pressures in the matter of theh
. removal. While in the case of these dignitaries removal on the ground of
c proved misbehaviour or fncapacity depe°ncJs upon the will of the Parliament,
any allegation of misbehaviour made against Members of the Public Service
Comrhission'has· to be ex3mined by this court on merits. 1t is impossible to
accept that" this Court i'n.one case and the Parliament in the case of others 3.re
en~rUst.ed by tJle ~onstitutt'o"n with tlie · lin1ited power of de"termining whether
the facts fourid.by some other body establish misbehaviour in one case and
misbf:ha~iour or iricapacit}. in those others. Their function is· to find upon
D facts and their duty is to pronounce whether the facts rOund by them eStablish
the charge of misbehaviour or incapacity as the case may be.
. [644 F,H, 645 A-DJ

_(3) Their would ~e no unfair advantage to either side if the questions
of fact arc decided by this court straightaway. So long as the essential safe-
guards of a fair adjudication are observed no grievance can .be made that the
E facts which establish the charge are found by the highest court. and not by
the lowest. [645 F-G]

, (4) (a) As regards procedure, Order XXXVlll rule (2) provides that
while making an enquiry into the matter referred to it by the President, this
court has power to sunimon witnesses and record their evidence. But having
F regard tO the nature and gravity of the matter, it would not be conducive to
jllstice 'to· decide the reference on a consideration of affidavits only, because it
wOuld not be known at this stage whether the allegation that the n1ember was
falsely implicated in· the incident is true or not. Those allegations cannot be
adjudicated upon on a consideration of the affidavits only. Having regard to
the important nature of the question, the. parties whose· interests are affected
should be pennitted to cross-examine the opposing witnesses. Again keeping
in view the grave nature of the allegations and counter alleg~tions it will be
. iinp0ssib1e to consider in isolation the evidence bearing directly on the alleged
inCident of Slapping but' the entire eVidence would have to be taken into
account' for dec'iding 'WhettiC'r the allegations against the member can be held
t6 'be proved. Therefo~e it is Only' ·raif that an opportunity should be given
1

io the member to pfove that . the charge against him was false, inspired and
motivated. [646 E-HJ ,

(b) Order XXXVUI, Rule 2 of the Supreme Court Rules confers power
Qp tbi~ Court to 'sumµion an~ exrunine witnesses but it Qo~s :p.ot enjoin that
SPECIAL REFERENCE CASE ( Chandrachud, C.J.) 641

the evidence must be recorded by this court ·itself. Although a provision like
Order XLVII, Rule 6 which preserves the power of the court to act ex debito ~A
justiciae is not incorporated in order XXXVIII, it has to be rea4 ·in the latter
Order to enable this Court to pass proper orders in the interest of justice.
(648 E-H)

Considering the overwhelming commitments of this Court, the Court
delegated the duty of recording evidence to _the District Judge with a dir~ction
that he should record evidence treattng the affidavits filed in this C<;>urt as
examination in chief of the respective witnesses and· (2) that the evidence·
recorded should be limited to cross-examination only of witnesses who h(!d
filed affidavits before this Court. [649 A-BJ ·

ADVISORY JURISDICTION : Special Reference No. 1 of 1983.
c
(Reference under Article 3.17(1) of the Constitution of India)

G. L. Sanghi, S. K. Mehta, P. N. Puri and M. K. Dua for
Chairman, Punjab Service Commission.
D
So/i. J. Sorabjee, Bhagwant Singh, Advocate General Punjab,
S. K. Bagga for the State of Punjab.

F. S. Nariman, Anil B. Divan, Girish Chandra and Mrs. Sar/a
Chandra for Gopal Krishan Saini (Defaulting Member)

K. Parasaran, Attorney General, Miss A: Subhashini for Union
oflndia. ·

The order of the Court was delivered by

CHANDRACHUD, C.J. : This is the first Reference of its kind
made by the President of India to this Court under Article 317(1)
of the Constitution. That Article reads thus :

"317• . Removal and suspension af a member of. a
Public Service Commission. ·
G
· (!). Subject to .the provisions of clause (3) the
Cliairman or any other person of a Public Service Com·
mission shall only be removed from his office by
order of the President on the ground of misbehaviour
after the Supreme Court, on reference being made to it
by the President, has, on inquiry held in accordance
with the . procedure prescribed in thl\t behalf Under

'
642 SUPREME COURT REPORTS ll983) 3 s.c.a.

Article 145, reported that the Chairman or such other
.A member, as the case may be, ought on any such ground
to be removed."

Clause (3) of Article 317, which confers power on the President to
re.move the Chairman or any other member of a Public Service
Commission for reasons mentioned in sub-clauses (a), (b) and (c}, is
B not relevant for our purpose.

· Not only is this Reference the first of its kind but the facts
which have been referred to us for our consideration and report
are, shockingly, the first of their kind. We hope they will be the
c last of their kind. The order of Reference recites those facts as
follows:

"On 24.11.1982 at about 1300 hours Sbri Gopal
Krishan Saini, Member, Punjab Public Service Com-
mission, physically assaulted Smt. Santosb Cbowdhary,
D
Chairman, Punjab Public Service Commission inasmuch
as be slapped her on the face in the presence of three
other Members of the Punjab Public Service Com·
mission, namely, S/Shri H. S. Deol, M. S. Brar and W.G.
Lall and thereby committed gross misbehaviour."
E
In exercise of the power conferred by Article 317(1) of the Consti·
tution; the President has referred for consideration of this Court
the question "as to whether Sbri Gopal Krishan Saini, Member of
.the Punjab Public Service Commission, _ought, on the ground of
F . misbehaviour, to be removed from the office of the Member of the
Commission."

. We issued notice of the Reference to the five members of the
Commission, including the Chairperson Smt. Santosh Chowdhary
and Shri Gopal Krishan Saini who is alleged to have assaulted her.
G
All of them have filed their affidavits in these proceedings. Certain
other persons who claim to have knowledge of the incident or of
its alleged background have also filed their affidavits. Amongst
them are : Dr. Vinod Gupta, Ujagar Singh, Avtar Singh, Hakam
Singh and Dr. Rasewat. An affidavit has also been filed by Shri
H
Saini's wife, the purport of which is that Shri Saini has been involved
in this false incident since the Chief Minister of Punjab, Sbri Darbara
Sin~h, was not ba:pp~ with his appointment as· a Membi;r of th~

'
SPilCIAL REFERENCE CASE (Chandrac/lud, CJ.) 64~
Punjab Public Service Commission. It is also alleged that the
Chairperson's husband was running classes for trainii:ig students for
A
the Public Service Commission Examinations, that he wanted certain .
students of his to be favoured in those examinations aµd that on
the failure of Shri Saini to oblige him, his wife, the Chairperson,
has involved Shri .Saini into a false charge. The Chief Minister of
Punjab has filed an affidavit denying the al)egations made against B
him.

In pursuance of the notices issued by this Court, the Attorney-
General of India and the Advocate-General of Punjab appeared in
these proceedings. c
Shri Nariman, who appears on behalf of Shri Saini whose
conduct we are called upon to inquire into, contended that before
making this Reference, the President . should have obtained the
opinion of a fact-finding body for his prima facie satisfaction that a D
case wa; made out for obtaii:iing a report from this Court on the
question of the alleged misbehaviour of Shri Saini. According to
counsel, this Court cannot, through .the medium of a Reference, be ·
called upon to d.ischarge functions which ordinarily fall within the
jurisdiction of a trial Court, civil or criminal. The danger of such
a procedure is said to be that if we hold that the incident is proved, E
Shri Saini will automatically be held guilty by a criminal Court of the
charge of assault and he will have to suffer a decree for damages in
a civil court. Counsel says that under Article 317(1), the limited
function of this Court is or ought to be to determine whether the
facts found upon by an independent fact-finding body show that the
person concerned is ·guilty of misconduct and, secondly, whether the F
misconduct is of such a nature as io require his removal from the
office of Member of the Public Service Commission.

We are unable to accept these submissions. The ·power of
the President to make a reference to this C,ourt under. Anicle 317(1) · G
is not subject to the condition precedent that he must first have the .
facts examined by some other body or authority. That Article pro•
vides that the Chairman or any ether member of a Public Service··
Commission can only be removed from his offi~e on the ground of ··
) misbehaviour after the Supreme Court on a Reference made to it H
by the President reports that the Chairman or such other person.
ought to be removed on any such ground. There is no justification
for reading into ~he Article a provision which is plainly not to Q'
644 Spi'REME COURT REPORTS i1983) 3 s.c.~.
·found in it, especially a provision in the nature of a condition
A precedent. Besides, the documents annexed to the Reference and
indeed the fact that those documents are so annexed would show
that the President was satisfied prima facie that the allegations made
against the Member of tbe Public Service Commission require tci. be
inquired into by us. Annexed to tbe order of Reference are a reply
of Shri Saini to the alleiptions made against him and the statements
of the three Members of the Commission, Shri H. S. · Deol, Shri M. ·
S. Brar and Shri W. G. Lall. These four statements are Annexures
II, Ill, III·A and III-B respectiveiy to the Refererlce. It is on the
basis of this mat~rial that the President has· made the Reference.
C The material is of a kind and nature enough to justify the President's
opinion that a pfima facie case exists for an: inquiry and report by
this Court. in these circumstances, obtaining a preliminary·opinion
of yet. anotner body would be n.eedless .duplication of work and
avoidable waste of public time and money.

D,
The argument that in a reference under article 317 (I) this·
Court ought not to .embark upon an examination of facts and that
.its function is limited to determining whether the person concerned )
is guilty of·misbehaviour and whether the misbehaviour is of such a 'r-
nature as to justify his removal is ,in direct opposition to the plaim
E words·of.article 317.(1). That'article provides that, subject to the
provisions- of clause (3), (i) the Chairman or any other member of a-.
Public _service Commission can be removed. from his office only by.
the order of the President on the ground of misbehaviour and (ii) the
order of removal can ·be passed• after the Supreme Court has on·
F inquiry.reported to the President that the Chairman or the member
of a Public Service Commission is guilty of misbehaviour and ought·
to. be removed. from his office ori that ground. The inquiry which"
this Court is required to hold is not into the limited que~tion. whether;
on the basis of facts founci by the President, the charge of misbeha-
. viour is made out and whether the misbehaviour is of such a nature
G as to· warrant the removal of the person from his office. The inquiry I
contemplated by'.the article is into the facts themselves and facts also
· so as to enable this Court to pronounce upo.n the question· whetbet 1
the allegations made against the Chairman or member are proved 'at·
all. The purpose ofarticle317 (l}is to ensur-e the independence of,·
·H1 membePS of the Public Service Commissions and to give them protec-
tion iil the matter of tbeir tenure. The Judges.of the -Supreme Court
can be removed from their. office only in accordance with" the
procedure .~rescribed by article 124 (4) which is ma~e applicable to
SPECIAL REFERENCE CASE (Chandrachud, C.J.)
...
645
~

.., the Judges of High Courts, the Compiroller and Auditor-General of
India and the Chief Election Commissioner by articles 218, 148 and
324 (5) respectively. Members of Public Service. Commissions ate,
in one sense, given a higher degree of protection by the elimination,
as far as possible,'of political pressures in the matter of their removal.
Any allegation of misbehaviour made against them has tci be
examined by the Supreme Court on merits unlike the allegatidns.
made against those others whose removal on the ground of proved
misbehaviour or incapacity _depends upon the will of the Parliament.
It is impossible to accept that the Supreme' Court in one case and the
Parliament in the case of those others are entrusted by the Constitu-.
tion with the limited power of determining whether the facts foimd
by some other body establish misbehaviour in one case .and c
misbehaviour or incapacity in those others._ The·i.r function is tci find
upon facts and their duty is to pronounce whether the facts found by
them establish the charge of misbehaviour or incapa6ity, as the c'ase'.
may be.

D
The apprehension expressed by the learned counsel that the
finding recorded by this Court will automatically decide the fate of a·
prosecution or· of a civil suit for damages is real but; that is as it -
onght to be. No grievance can legitimately be made that an exami-
nation and assessment of facts is made by this Court instead· of being
made by a· Magistrate or a Munsil.. If a full opportunity is,given to E
the parties to prove and rebut the facts in issue as in a regular trial.
it is an idle complaint that the evidence has been examined and'
found upon by the Supreme Court and not by a court of first instance.
If, aft<;r giving a full opportunity to both the sides, the Supreme
Court comes to the conclusion that the facts alleged are established,
the conviction or a decree for damages may follow as a matter of
F
course. Bilt then, a contrary finding by this Court will equally seal
the fate of those proceedings. There iS, therefore, no unfair advant,
age to either side if the questions of fact are decided by this Court
straightway.· If the essential safegu.ards of a fair adjuaication are
observed, no grievance can be made that the facts ·which establish
'
a·
the charge of misbehaviour are found by the highest Court of the
land· and not by the lowest.

. The question which then arises before us is. a,s regards the pro-
cedure which' this Court should adopt in a Reference made by the
President under Article 317 (I) of the Constitution.· That Article
provides tliat an inquiry ha; to be held by this Court in accordance·
646 'SUPERME COURT REPORTS

· with the procedure prescribed iu that behalf under Article 145. Article
A 145 provides, to tlie extent 'material, that subject to the provisjons of
any law inade by Parliament, the Supreme Court may, from time to
time, with the approval of. the President, make rules for regulating·
the practice and procedure of the Court. Sub-clause,(j) of Article 145
(I) confers power ou this Court to ·make mies for regulating inquiries
under Article 317 (1)., Order XXXVIII of the Supreme Court Rules,
B 1966 contains rules regulating references under Article 317 (!). Rule
I of Order XXXVIII mentions the persons to whom n.otice of the
reference is required to be given. Rule 2, which is in point, provides
that "the Court may summon such witnesses as it considers necessary!'
This rule shows that while making an mquiry into the matter referred
c to it by the President, this Court is entitled to· summon witnesses .
which obviously is for the purpose of recording their evidence. In
other words, while dealing with a reference under Article 31'7(1). this
Court has the power to summon witnesses and record their evidence.

D A procedural issue which was debated before us is whether we
should pronounce our opinion on the allegations made against' Shri
Saini on the basis of the affidavits only or whether we should permit
the parties to cross-examine persons who have filed their affidavits.
Considering the nature and gravity of the matter referred to us, we
are of the opinion that it will not be conducive to justice to decide
E
the Reference on a consideration of the affidavits only. We do not
know at this stage whether the allegation made by Shri- Saini that he
has been falsely involved into the particular incident by reason of
certain other matters and at the instance of certain other persons, is
true or not But those allegations cannot be adjudicated upon on a
F consideration of th~ affidavits only. The credibility of witnesses who
. depose t() facts is a matter which bears directly on the adjudication
of those facts, And the best method of testing whether a witness is
a person of credit is to subject him (or her) to cross-examination.
The credit of. a witness can be shaken (and, ironically, sometimes·
established) by cross-examining him and indeed, section 146(3) of the
G Evidence Act specifically permits the cross-examination of a witness
in order "to shake his credit by injuring his character". Bearing in I':
mind the impact of our findings on a future trial, civil or criminal,
relating to the question referred to us, the repercussions of our find·
ings on the parties concer.ned and the fact that the matter referred
H. to us is one of public importance which transcends the immediate
private interests of the parties who have made_ allegations and
counter-allegations against one another, we are of the view that
SPECIAL REFERENCE CASE (Chandrachud, C.J.) 647
parties whose interests are directly affected by these proceedings, that
is to say the Chairperson Smt. Santosh Chowdhary and Shri Gopal A
Krishan Saini ought to be permitted to cross-examine opl.'osing ,
witnesses who have filed their affidavits.

There was a sharp difference between the rival views submitted
before us as to the nature and scope of the evidence which we should B
allow the parties to lead. It was contended by Shri Sorabjee who
appears for tbe Government of Punjab and by Shri G.L. Sanghi who
appears for the Chairperson that evidence should be allowed to be
led only on the question whether the incident of slapping took place
as alleged and not on any other matter. It was urged by these
learned counsel that we a re only concerned to determine whether
c
Shri Saini slapped the Chairperson and not with the events antece-
dent to the assault or which are said to furnish the motive for the
alleged false implication of Shri Saini. On the other hand, it was
contended by Shri Nariman that the case of his client is that he has
been falsely implicated into the charge of assault because he had D
incurred the wrath of the Chief Minister of Punjab and the hostility
of the Chairperson's husband and that, it would be impossible for
him to prove his case unless he is allowed to cross-examine witnesses
on those aspects of the matter. Counsel contends that if he could
satisfy us that there was a conspiracy to involve his client falsely or
that there were reasons for so involving him, we . will be loathe to
E
hold that the alleged incident is proved. Shri Nariman's submission
must be accepted in the circumstances of the case. It will be impossi-
ble to consider in isolation the evidence bearing directly on the
incident which is alleged to have taken 'place on November 22, 1982.
The entire evidence, admissible and relevant, shall have to be taken F
into account for the purpose of deciding whether the allegation against
Shri Saini can be held to be proved. We are not pronouncing at a
stage upon the admissibility or relevance of any particular piece cif
evidence, which shall have to be done · after the entire evidence is
before us .. All that we do now is to say that we cannot prevent
Shri Saini, against whom a grave charge has been made, from proving G
that the charge is false and motivated. One of the questions which
is bound to arise in this matter, as it arises in matters of similar
nature, is as to why the complainant should make a false allegation
that she was slapped, courting trouble and inolving her own status
and respectability. The answer to that question has to be furnished H
'by the person who is called upon to meet the allegation that he
slapped her. Answers on questions of fact cannot be made in court~
648 SUPltEMll COURT REPORTS [J9SJj J S.C.R.
of law in a vacuum. There has to be evidence to justify those answers.
A 'flierefore, it is only fair that an opportunity should be given to
Shri Saini to prove his case that the charge against him is false,
inspired and motivated. We only hope that this opportunity will
not be exploited by Shri Saini to fight a political battle, against the
Chief Minister or to engage in a duel with the Chairperson's
husban_d. In the ultimate analysis, after the dust raised by these
. accusations and. counter-accusations has settled down, the funda-
mental question which this Court will have to answer is : Did Shri
Saini slap the Chairperson or not? She says he did. He says .he
did not. And on the contrary, according to him, it is she who
raised her hand to beat him when he tried to ward off the blow.
c He· says that this occasion was .exploited by interested parties to
involve him in a false charge, out of personal malice and hostility.
Both the ilccuser and the accused must have an equal opportunity
to prove their respective cases. It must also be remembered that
Article 317 was enacted in order to give protection to the members
D of the Public Service Commissions in regard to their removal from
office and not as a disability.

Having seen that witnesses shall have to be summoned and
allowed to be cross-examined by the opposite party the next question
. which we have to decide is whether we should have the evidence
E
recorded in our presence or whether we can and should appoint.some
responsible delegate for doing so. Order XXXVIII, Rule 2 of the
Supreme Court Rules, 1966 provided that this Court may summon
such witnesses as it considers necessary. This provision confers the
requisite power on· this Court to summon and examine witnesses, but
F nothing contained therein can be read to mean that after deciding
whii:h witnesses should be summoned and examined, evidence mnst
be recorded by this Court itself. Order XL VII, Rule 6 of the same
Rules provides that nothing contained in the Rules "shall be deemed
to Iim:if'or otherwise affect the inherent powers of the Court to make
such o'rders as may be necessary for the ends of justice or io prevent
ab'use ofthe process of ihe Court: This provision, like its counter-
part in statutes like the Code of'Civil Procedure (Section 151) or· the
··Code of Criminal Procedure (Section 482), does not create or confer
any new' power but preserves the power of the Court to act ex debito
justiciae. Though a provision like Rule 6 of Order XLVII of the
H Supreme Court Rules is not specifically incorporated in Order
xxxVIII o(those Rules, it, shall have to be read in the latter Order·
in order to eriab!e this Court tO' pass proper orders in the interest of
SPilciAL REFERENCE CASE (Cira~drachud, C.J.) 649'
justice. Considering the overwhelming commitments of this €ourt
for the time being (and in tlie foreseeable future), it is regretfully A
inexpendient that the evidence should be rec~rded by this Court itself.
No useful purpose will be served By· expenditig our own time in
recording the evidence of various witn~sses ·except for the advantage
of seeing and hearing the witnesses. The balance of cotivenience
requires that we should forego·that advantage and delegate the duty B
of recording evidence. . Accordingly, we direct that evidence' in this·
Refe<ence will be recorded by a· learned Additional District and
Sessions Judge, Delhi, who wil!'be.nominated by tlieleraned District
and Sessions Judge, Delhi. The nomination may be made before
August. 22, 1983.
c
We cannot confer any power" on the learned Judge so nominated
for recording evidence, to decide on the admissibility or relevance of
any particular piece of evidence. The learned Judge will, therefore,
record the evidence which the parties lead before him, within: the
constraints of the following guidelines :
D
(I} The affidavits filed in this Court will be treated as the
examination-in-chief of the respective witnesses.

(2) The evidence to be recorded by the learned Judge will be
limited to the cross-examination of witnesses who have filed affidavits E
before us. In other words, no person who has not filed an affidavit
in this Court will be examined or cross-examined as a witness, except
with the leave of this Court. ·

(3) Witnesses who have filed ·affidavits in this Court may be
summoned or requested by the learned Judge to attend his Court for F
the purpose cif oross-examitiation. The proceedings will normally be
held in Delhi. Evidence may, however, be recorded at any other
place if the learned Judge considers it necessary or convenient.

The ·mere fact that the evidence of any particular witness is G
recorded by the learned Judge will not conclude the issue as regards
the admissibility or relevance of thaf evidence. All questions regard-
ing admissibility and relevance of the evidence so recorded will be
decided by. this Court during the hearing of the Reference.
H
We hope that all parties concerned will take care to avoid
putting frivolous or scandalous questions to witnesses and will afford
•
SUPREME COURT REPORTS ii 983} ~ s.c.R,

A·
the necessary co-operation to the learned Judge for an expeditious
termination of the proceedings before him.
··.""
The parties shall appear before the learned Additional District
and Sessions Judge nominated by the learned District and Sessfons
Judge, Delhi, on Monday, September 5, 1983, at 11.00 a.m., for
obtaining further directions in the matter. The recording of evidence
8 will commence on Monday, September 12, 1983 and shall proceed
from day to day until the entire evidence is over. We expect that the
recording of evidence will be over by September 30, 1983. In case
it·is not over by that date, the learned Judge may write to the
Registrar of the Supreme Court for extension of time. The evidence
c will be transmitted to the Registrar (Judicial) of this Court
immediately after the entire evide!1ce is recorded.

P.B.R.