Statements Before a Commission: Sections 6 and 6A

The relationship with the recommendatory character of the report

Chapter 480 works the case that establishes that a Commission's report is recommendatory and not enforceable of its own force. Section 6 is the evidentiary half of the same idea, and the two were expressly linked by the Supreme Court in 1958.

In Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, which chapter 390 works in full, the Court struck out of the terms of reference the direction to recommend action by way of securing redress or punishment. Its reasoning combined both points: seeing that the Commission has no judicial powers and its report will purely be recommendatory and not effective proprio vigore, and that the statement made by any person before the Commission is, under section 6 of the Act, wholly inadmissible in evidence in any future proceedings, civil or criminal, there can be no point in a Commission recommending action by way of securing redress or punishment for wrongs already done, which must be imposed by a court of law properly constituted.

So the Court read section 6 as part of the reason a Commission cannot punish. The two propositions support each other: a body whose evidence cannot be used elsewhere is not a body that determines liability.

Section 6 and the case that shows its limit

Facts. T.T. Antony v. State of Kerala, (2001) 6 SCC 181, AIR 2001 SC 2637, decided on 12 July 2001 by S.S.M. Quadri and S.N. Phukan JJ, arose out of police firing at Kuthuparamba in Kerala in which five people were killed. A Commission of Inquiry was appointed and reported. After a change of government a second first information report was registered on the same firing, against the District Collector, the Executive Magistrate and police officers, and further proceedings were launched on the strength of the Commission's findings.

Held. The Supreme Court quashed the second information report and the proceedings founded on it. There can be no second first information report and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence; the remedy, if any, is a further investigation under section 173(8) of the Code with the leave of the court. The Commission's report could not itself supply the foundation for a fresh criminal case on facts that had already been investigated.

Why it matters here. It is the practical demonstration of what section 6 means. A Commission may report that named officers acted wrongly, and that report is not a charge sheet, is not evidence, and cannot restart a criminal process that has run. Chapter 520 develops the point.

Section 6A: the secret process

Except in cases where a Commission is expressly required to inquire into the process of manufacture of any goods, nothing in this Act shall be deemed to compel any person giving evidence before the Commission to disclose any secret process of manufacture thereof.

What it protects. Trade secrets. A witness giving evidence about a supply contract cannot be compelled to reveal how his goods are made.

The exception. Where the Commission's own terms of reference expressly require it to inquire into the process of manufacture. So the protection yields where the manufacture is the very thing being inquired into, which would be the case in an inquiry into, say, adulterated medicine.

Where it sits in the scheme. Section 5(2) preserves privileges claimable under any law; section 6A adds a protection that is not otherwise a privilege. It was inserted by the amendment of 1971, and it is a small provision that shows the Act being adjusted as inquiries reached commercial subjects.

A worked example

A Commission inquires into the supply of substandard cement to a public project.

A junior storekeeper is summoned. He is asked whether he signed receipts for consignments he never saw. Under section 5(2), if notified, he is legally bound to answer. If he refuses, sections 176 and 177 of the Penal Code apply.

He answers truthfully: he signed without checking, on his supervisor's instruction. That is an admission of dereliction and possibly of an offence.

Section 6 protects him. The statement was made in reply to a question he was required to answer and is relevant to the subject matter. It cannot subject him to, or be used against him in, any civil or criminal proceeding.

What is not protected. If he lies, he may be prosecuted for giving false evidence by that statement, both under the exception in section 6 and under section 5(5) with section 193 of the Penal Code.

And what the State may still do. Prosecute him on independent evidence: the receipts themselves, the testimony of others, the supervisor's records. Section 6 excludes his statement, not the underlying facts.

The manufacturer is summoned and asked about the cement's composition. If the terms of reference do not expressly require an inquiry into the process of manufacture, section 6A protects his secret process. If they do, it does not.

Now the report is published, finding that the storekeeper and the supervisor were at fault. Chapter 520 and T.T. Antony answer what follows: the report is not a charge sheet, and a fresh first information report on the same occurrence, already investigated, cannot be founded on it.

What beginners get wrong

That section 6 gives immunity from prosecution. It gives immunity from the use of the statement. The person may be prosecuted on other evidence.

That everything a witness says is protected. The proviso requires the statement to have been made in reply to a question he was required to answer, or to be relevant to the subject matter.

That a witness may lie safely. The exception is express: a prosecution for giving false evidence by that statement.

That section 6 is the reason Commission reports are ignored. It is one reason findings do not convert into convictions. Chapters 510 and 540 give the others, which are political and administrative.

Quick revision

s.6: no statement made in the course of giving evidence before the Commission shall subject the maker to, or be used against him in, any civil or criminal proceeding, except a prosecution for giving false evidence by that statement; provided the statement is in reply to a question he was required to answer or is relevant to the subject matter.

The technique is use immunity, and it exists because compelled evidence usable in a prosecution would collide with article 20(3).

The price: a finding cannot be converted into a conviction on the Commission's own evidence; a prosecution must be rebuilt from independent material.

Ram Krishna Dalmia read section 6 together with the recommendatory character of the report to strike out a direction to recommend redress or punishment.

T.T. Antony v. State of Kerala, (2001) 6 SCC 181: no second first information report on the same occurrence; a Commission's report cannot found a fresh criminal case on facts already investigated.

s.6A: no compulsion to disclose a secret process of manufacture, unless the Commission is expressly required to inquire into that process.

Test yourself

1. State the rule in section 6 with its exception and proviso. No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding, except a prosecution for giving false evidence by such statement. The protection applies provided the statement was made in reply to a question which the Commission required him to answer, or is relevant to the subject matter of the inquiry.

2. Why does the section exist, and what constitutional provision stands behind it? Because an inquiry needs candid evidence while a witness needs protection, and the two conflict. A body that can compel answers whose use in a prosecution is permitted would extract compelled self-incriminating evidence without the safeguards of a trial, which would collide with article 20(3), that no person accused of an offence shall be compelled to be a witness against himself. Section 6 resolves the conflict by compelling the answer and neutralising its use elsewhere, a technique known as use immunity.

3. Does section 6 prevent a prosecution? No. It prevents the use of the statement. The person may still be prosecuted on evidence obtained independently of what he said to the Commission, such as documents, other witnesses or records. What cannot happen is a prosecution built on his own compelled statement.

4. How did the Supreme Court use section 6 in Ram Krishna Dalmia? It read section 6 together with the recommendatory character of the report as the combined reason why a Commission cannot be directed to recommend action by way of securing redress or punishment for wrongs already done: the Commission has no judicial powers, its report is not effective proprio vigore, and the statements made before it are wholly inadmissible in any future civil or criminal proceeding, so redress or punishment must come from a properly constituted court.

5. What does section 6A protect, and when does the protection yield? It protects a secret process of manufacture: nothing in the Act compels a person giving evidence to disclose one. The protection yields where the Commission is expressly required by its terms of reference to inquire into the process of manufacture of the goods in question, which would be so in an inquiry into, for example, adulterated goods.