The Powers of a Civil Court: Section 5

What the deeming does. Section 176 of the Penal Code punishes omission to give notice or information to a public servant by a person legally bound to give it. Section 177 punishes furnishing false information to a public servant. By deeming the person legally bound, sub-section (2) converts a refusal or a lie into a criminal offence.

"Subject to any privilege" preserves the ordinary claims: legal professional privilege, the privilege against self-incrimination, State privilege over unpublished official records. A Commission may require information; it cannot override a privilege the law gives.

Notice the standard: "useful for, or relevant to". Wider than relevance alone. An inquiry is not bound by the Evidence Act's tests of relevance in the way a trial is, and this phrase says so.

Sub-section (3): search and seizure

The Commission, or any officer not below the rank of a Gazetted Officer specially authorised by it, may enter any building or place where the Commission has reason to believe that books of account or other documents relating to the subject matter of the inquiry may be found, and may seize them or take extracts or copies, subject to the provisions of sections 102 and 103 of the Code of Criminal Procedure 1898 so far as applicable.

Three limits built into the sub-section. The officer must be not below Gazetted rank. There must be reason to believe, which requires material and not suspicion. And the search is subject to the safeguards of the Code, which are those on the procedure of search and the presence of witnesses.

A drafting point worth knowing. The sub-section refers to the Code of Criminal Procedure 1898, which was replaced by the Code of Criminal Procedure 1973 and, in turn, by the Bharatiya Nagarik Suraksha Sanhita 2023. The Act has not been updated, and the reference is read through the General Clauses Act's rule that a reference to a repealed enactment is construed as a reference to the corresponding provision of the re-enactment. A student who notices the dated reference and explains how it is read has shown something real about how old statutes are kept working.

Sub-section (4): offences in the face of the Commission

The Commission shall be deemed to be a civil court and where an offence described in sections 175, 178, 179, 180 or 228 of the Indian Penal Code is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused, forward the case to a magistrate having jurisdiction, who shall proceed as if the case had been forwarded to him under the corresponding provision of the Code.

What those Penal Code offences are. Section 175, omission to produce a document to a public servant by a person legally bound to produce it. Section 178, refusing oath when duly required. Section 179, refusing to answer a public servant authorised to question. Section 180, refusing to sign a statement. Section 228, intentional insult or interruption to a public servant sitting in a judicial proceeding.

So sub-section (4) gives the Commission an immediate answer to obstruction in the room. It cannot punish, which would make it a criminal court, but it may record what happened and send the case to a magistrate.

Sub-section (5): a judicial proceeding

Any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code.

Section 193 punishes giving false evidence in a judicial proceeding. Section 228 punishes intentional insult or interruption to a public servant sitting in a judicial proceeding.

Which is the answer to an obvious question. If a Commission is not a court, as chapter 470 will show, why is lying to it perjury? Because sub-section (5) deems the proceeding judicial for those two sections, and for nothing else. A deeming provision creates a fiction for a stated purpose; it does not convert the body into a court for all purposes.

Compare section 9 of the same Act, which chapter 460 reads, and section 27(2) of the Lokpal Act, which chapter 160 read. The same technique is used in every Indian statute that creates an inquiring body.

A worked example

A Commission is appointed into a State transport corporation's procurement, and the notification applies all of section 5.

Sub-section (2). The Commission requires the corporation's former purchase manager to furnish a list of every supplier approached in three years. He refuses. He is deemed legally bound within section 176 of the Penal Code, so his refusal is an offence.

He claims privilege, saying the list would incriminate him. Sub-section (2) preserves any privilege claimable under any law, so the claim must be considered on its merits.

Sub-section (3). The Commission has reason to believe that the tender comparison sheets are at the corporation's godown. It authorises its Secretary, a Gazetted Officer, to enter, and he seizes the sheets, subject to the Code's safeguards on search.

Sub-section (4). A witness, told to produce his diary, refuses in the hearing room. That is section 175 of the Penal Code committed in the view of the Commission. The Commission records the facts and his statement and forwards the case to a magistrate.

Sub-section (5). Another witness lies on oath about a meeting. Because the proceeding is deemed judicial for section 193, that is perjury.

Now suppose the notification had applied only sub-sections (2) and (5). The Commission could require information and a liar could be prosecuted, but the Commission could not search the godown and could not deal with the refusal in the room except by reporting it. Same Act, same kind of inquiry, materially different powers.

Distinctions: section 4 against section 5

What beginners get wrong

That every Commission can search premises. Only one to which section 5(3) has been applied by notification.

That sub-section (5) makes the Commission a court. It deems the proceeding judicial for sections 193 and 228 of the Penal Code and for nothing else.

That a witness must answer everything. Sub-section (2) is expressly subject to any privilege claimable under any law.

That the Commission can punish contempt itself. Under sub-section (4) it records the facts and forwards the case to a magistrate. Section 10A, which chapter 460 reads, is different and provides for the High Court.

Quick revision

s.5(1): sub-sections (2) to (5) apply only if the appropriate Government notifies that they shall, having regard to the nature of the inquiry.

s.5(2): power to require any person, subject to privilege, to furnish information useful for or relevant to the inquiry; the person is deemed legally bound within sections 176 and 177 of the Indian Penal Code.

s.5(3): entry, search and seizure of books and documents by the Commission or a Gazetted Officer it authorises, on reason to believe, subject to the Code's safeguards.

s.5(4): the Commission is deemed a civil court for offences under sections 175, 178, 179, 180 and 228 of the Penal Code committed in its view or presence; it records and forwards the case to a magistrate.

s.5(5): proceedings deemed judicial within sections 193 and 228 of the Penal Code, so lying to a Commission is perjury.

The criticism: whether the Commission gets these powers is the Government's decision, including where the inquiry is into that Government.

Test yourself

1. Do the powers in section 5 attach automatically? Explain. No. Section 5(1) requires the appropriate Government to form an opinion, having regard to the nature of the inquiry and the other circumstances of the case, that all or any of sub-sections (2) to (5) should be made applicable, and to direct by notification in the Official Gazette that they shall apply. Until that notification they do not apply, so two Commissions under the same Act may have materially different powers.

2. What does section 5(2) add to the power to require information? It deems any person so required to be legally bound to furnish the information within the meaning of sections 176 and 177 of the Indian Penal Code, so that a refusal to give the information and the giving of false information each become criminal offences. It is expressly subject to any privilege claimable under any law, and the standard is information useful for or relevant to the subject matter of the inquiry, which is wider than relevance alone.

3. Explain the deeming provisions in section 5(4) and 5(5), and why they do not make the Commission a court. Section 5(4) deems the Commission a civil court so that where an offence under sections 175, 178, 179, 180 or 228 of the Penal Code is committed in its view or presence, it may record the facts and the accused's statement and forward the case to a magistrate. Section 5(5) deems any proceeding before it a judicial proceeding within sections 193 and 228, so that giving false evidence to it is perjury. Both are deeming provisions creating a fiction for stated purposes only; a Commission remains unable to pronounce a binding judgment, which is the test of a court.

4. Why is the Government's control over the section 5 powers criticised? Because a Commission is very often appointed into the conduct of the Government that appoints it, and that Government decides whether the Commission may search premises, seize documents and treat obstruction as a criminal offence. An inquiry into a Government held without the power to search the Government's offices is materially weaker, and the choice is made by the body under inquiry. The reform usually proposed is that the section 5 powers should attach automatically or on the Commission's own request.