In the preceding chapter on "Noticer Procedure and Evidence" factors which caused considerable delay in the conduct of the Inquiry and greatly hampered its progress have been briefly stated. Those factors and other issues relating to procedural and legal wrangles with which the Commission was confronted over the period and which the Commission had to resolve painstakingly get reflected in the proceedings of the Commission. A detailed and step by step account of the same is given her under: The Commission held its first hearing on 31.7.1992 with the following three items on the agenda: (1) To consider Regulations of Procedure of the Commission of Inquiry: (2) To consider the scope and parameters of the terms of reference of the Inquiry: and (3) Circulation of copies of the affidavits amongst the parties or counsel representing the parties. 5 3 The Regulations of Procedure, 1992 framed by the Commission (Annexure 16) in exercise of powers conferred on it by Section 8 of the Act and sub-rule (8) of Rule 5 of the commissions of Inquiry (Central) Rules, 1972 and all other enabling provisions to regulate its procedure were adopted and circulated amongst the parties 5 4 The affidaivts filed before the Commission were circulated to the parties and to the Counsels representing the parties with the direction that "the contents of all the affidavits shall be kept confidential and shall not be released to the Press or made public and that these shall be used only for the purposes of proceedings before the Commission

CHALLENGE TO THE JURISDICTION OF THE COMMISSION AND ITS IMPACT ON THE INQUlRY.

The Counsels for the parties made their respective submissions while the then Attorney General of India submitted that he would make his detailed submissions. On the next hearing held on 27th August, 1992 inter alia to consider the scope and parameters of the terms of reference of the Inquiry, the Commission after hearing Counsels for the parties passed the following Order: The Attorney General will file his written submissions with case law The Attorney General may also file an application on behalf of the Central Government stating that the Government does not want the Commission to probe the matters covered by the chargesheet filed by the SIT before the Designated Court at Madras. The Attorney General will procure a copy of the report of the Verma Commission of Inquiry from the Government for the perusal of the Commission. The Secretary of the Commission will obtain a copy of the Thakkar Commission Report from the Ministry of Home Affairs. Parties are permitted to file counteraffidavits and documents.

The next hearing of the Commission fixed for Friday, the 25th September, 1992 for further submissions by the parties on the two items quoted above "On 25th September, 1992 the Commission passed the following Order:

"Shri Madan Lokur, Advocate for the Central Government, prays for four weeks time for filing the written submissions with case law in respect of the two contentions, namely, that there is complete want of jurisdiction in the Commission over the areas covered by the chargesheet and two, propriety based on convention demands that the Commission should not probe those areas, and also for filing the application stating the stand of the Government in respect of the areas covered by the investigation conducted by the SIT culminating into the chargesheet. Shri K. Subramanian, Advocate General for the State of Tamil Nadu and counsels for the other parties also submit that let the written submissions and the application be filed and it is only thereafter that they will be in a position to place their views and contentions.

On a submission being made by the Advocate General for the State of Tamil Nadu that on the last date of hearing he had made a request for the production of the Report of the Justice Verma Commission of Inquiry, Shri Lokur submitted that he would be seeking instructions from the Government and would act thereupon.The written submissions with case law and the application be filed by the Attorney General for India by 23rd October, 1992. On filing of the written submissions and the application the same shall be circulated. The matter will be taken up for hearing on 4th November, 1992".

5 6 Shri Ramaswamy however did not file the documents by the stipulated date i e 23 10 1992 and resigned from his office some time later. Consequently, the Commission at the request of the Ministry of Home Affairs vide its D O letter No VI-23014/383/92-GPA III (Vol I) dated 21 11.1992 had to postpone its hearing scheduled to be held on 4 11 1992. Subsequently, the Union Home Secretary Dr Madhav Godbole filed an affidavit (No 109/93 JCI) dated 9 11 1992 in which it was stated that the statutory investigation into the assassination had already been initiated by the SIT when the terms of reference of this Commission were finalised The Coommission was not intended to review the investigation or scrutinise the investigation of the SIT The Government has full faith in the investigation carried out by the SIT and now on the basis of the investigation, the chargesheet has been filed before the Designated Court. The Central Government did not intend or wish to jeopardise the trial of the accused. It was also stated that the terms of reference of the Commission ought to be interpreted in such a manner as to ensure that the trial is neither prejudiced nor any person accused in the case, nor any witness cited by the SIT is called upon to give any evidence before this Commission. On receipt of this affidavit, a letter dated 12 11 1992 was addressed by the Commission to Dr Godbole stating that the affidavit :merely represents an argument and the affidavit cannot be taken as a substitute for the application which the Attorney General had volunteered to file while stating the stand of the Government. The application, which was to be submitted by the Attorney General, was to take a clear stand as to whether the Government wants or does not want this Commission to inquire into the areas covered by the investigation conducted by the SIT culminating into the chargesheet.

5.7 The Ministry of Home Affairs however took nearly 5 months to appoint a successor to Shri G. Ramaswamy. Shri B. Datta, Senior Advocate, Supreme Court, was appointed by the Ministry of Home Affairs vide their letter dated 29.3.1993 to represent the Departments and Agencies of the Central Government before the Commission. That explains the reasons as to why the Commission could not hold any hearing for six months i.e after 25.9.1992 till the appointment of Shri B. Datta on 29.3.1993. But the Commission worked hard during this interregnum and used this precious time in issuing questionnaires to various authorities, etc. to elicit information on vital issues relating to the terms of reference of the Inquiry.

5.8 On the appointment of Shri B. Datta, Counsel for the Central Government the hearing of the Commission was fixed for 10th May, 1993, but Shri Datta by his letter dated 22.4.1993 represented and requested for adjournment by six weeks which the Commission granted and fixed the next date of hearing for 31st May, 1993. Written submissions on behalf of the Central Government were filed by Shri B. Datta on 31.5.1993 5.9 On 1.6.1993. the Commission dictated a short order determining the scope and parameters of the terms of reference of the Inquiry and held as under: "Heard the learned counsel for the parties. Having regard to the terms of reference of this Commission and the legal position, I overrule the contention of Shri B. Datta, Senior Advocate for the Central Government that "this Commission will have no authority to examine and consider the investigation done by the Special Investigation Team (SIT) culminating into the chargesheet and that the areas covered by the chargesheet cannot be probed by this Commission.

However, for the present, this Commission would not like to go into the areas covered by the chargesheet but will probe into areas which are outside the chargesheet and will proceed to hold an inquiry in respect of persons and agencies, other than those against whom chargesheet has been filed in the Designated Court. who were responsible for conceiving, preparing and planning the assassination of Shri Rajiv Gandhi, former Prime Minister of India and for this purpose the SIT will make the case diary, documents and other records and materials concerning investigation available to the Commission keeping in view the requirements of the trial of the case which is being conducted by the Designated Court simultaneously also seeing that the progress in the inquiry by the Commission is not hampered or delayed.Coming to the terms of reference of this Commission, it is relevant and pertinent to note that the matters covered by the terms of reference of Justice J.S. Verma Commission have been specifically excluded from the purview of this Commission. In respect of sequence of events leading to the assassination of Shri Rajiv Gandhi, having regard to the evidence and material which have come on record of the Commission so far, it would be appropriate to take into account the sequence of events beginning from 1981 till 21st May, 1991, the day of assassination.

The second part of the first term of reference, that is "all the facts and circumstances relating to the assassination of Shri Raiiv Gandhi" and the second term of reference of this Commission are related to the areas covered by the chargesheet. The Commission would not probe those areas for the present as already stated above.On all these matters, a detailed reasoned order will follow".

5.10 The Commission pronounced its detailed reasoned Order on 2nd July, 1993 (Annexure 2) wherein it inter alia held as under:(1) The Jurisdiction under the Code of Criminal Procedure possessed by the courts and the jurisdiction of the Commission under the Commissions of Inquiry Act are two independent jurisdictions and the exercise of the same would be within their respective domain or sphere and the two jurisdictions may continue to function in a Parallel manner simultaneously.(2) The Commission of Inquiry Act is a selfcontained law. Filing of the chargesheet cannot be taken to mean that the Commission is divested of its jurisdiction to conduct the inquiry in matters ambit of the terms of reference. (3) It cannot be said that the Commission of Inquiry is divested of its jurisdiction generally when the charge-sheet is filed and particularly in view of the provisions of the TADA Act. There does not appear any conflict between the provisions of the Commissions of Inquiry Act, the Code ofCriminal Procedure and the TADA Act. The provisions of these Acts can be given effect to in a harmonious way. The Commissions of Inquiry Act and the TADA Act are both special laws. Still provisions of Section 16 of the TADA Act shall prevail. In this manner, seeming inconsistency or repugnancy, if any, can be avoided and the two laws are harmoniously, given effect to. Under the Regulations of Procedure framed by the Commission, proceedings can be held in camera which would mean that they are not to be published. Looking to the public importance and sensitive character of the Inquiry, a thorough probe is needed leaving no areas including the areas covered by the chargesheet which are related to the terms of reference. The Commission has to satisfy itself after deeper probe as to who are the persons or agencies responsible for conceiving, preparing and planning the assassination and whether there was any conspiracy. Investigation by the SIT in the assassination case may be thorough, fair and impartial and the findings of the Commission may not vary with that of the investigation, but that does not mean that the Commission should not make any inquiry. (5) Despite submission of chargesheet under Section 173 of Cr.P.C. and despite provisions of the TADA Act, this Commission is competent enough and has Jurisdiction to make an inquiry into the matters referred to it, rather it is obligatory to do so. The manner of making inquiry rests with the Commission. Even expediency or propriety does not warrant that such an inquiry need not be conducted. On the contrary, this Commission, having regard to its terms of reference, is duty-bound to make an inquiry under the Notification, though the mode and extent of inquiry would depend on the exigency of the situation.

5.11 The Commission came to the following conclusions: "First, the Commission for the present would not go into the areas covered by the charge-sheet and will probe into areas which are outside the charge-sheet and will proceed to hold an inquiry in respect of persons and agencies, other than those against whom charge-sheet has been filed in the Designated Court, who are responsible for conceiving, preparing and planning the assassination of Shri Rajiv Gandhi, former Prime Minister of India. Second, the SIT will make the case diary, documents, records and materials concerning investigation available to the Commission keeping in view the requirements of the trial of the case before the Designated Court, simultaneously also seeing that the progress in the inquiry by this Commission is not hampered or delayed:

Third, the matters covered by the terms of reference of Justie Verma Commission would be outside the purview of this Commission, and Fourth, the Commission shall take into account the sequence of events beginning from 1981 till 21.5.1991, the day of assassination".

5.12 After the pronouncement of this Order, Shri B. Datta, Counsel for the Central Government, prayed for six weeks' adjournment to study the order and also submitted that the two items on the agenda may be taken up on the next date of hearing. Six weeks' adjournment was granted as prayed and the next date of hearing was fixed for 16th August, 1993 at 11.00 A.M.

5.13 On 16th August, 1993 the following two items were on the agenda: (1) To consider the larger question of privilege in respect of documents and affidavits raised on behalf of the Central Government as well as on behalf of the Tamil Nadu Government. (2) To consider the question of issuance of notices under section 8-B of the Commissions of Inquiry Act, 1952 in respect of the first part of the firsterm of reference of the Inquiry, that is, "the sequence of events leading to the assassination of Shri RaJiv Gandhi".

5.14Shri B. Datta, Counsel for the Central Government moved an application (No.l/93-JCI) dated 14.8.1993 (Annexure 24) on behalf of the Central Government seeking clarification/amendment and/or suspension of the Commission's Orders dated 1st June, 1993 and 2nd July, 1993 and prayed that pending consideration of the application further proceedings before the Commission may be stayed in regard to the matters stated in the application. He further prayed that the matter may be taken up by the end of September, 1993. It was pointed out that six weeks time was allowed as prayed for on the last date of hearing. The application which was presented today should have been presented earlier as submitted by counsels of other parties because according to them the application needed arguments. In view of the submissions made by the counsels the Commission considered it proper to adjourn the hearing and fixed 6th October, 1993 as mutually agreed to by the parties. It was further directed that the hearing would continue till 8th October, 1993 if necessary and that the two matters on the agenda would also be taken up on the next date of hearing. On 6th October, 1993 Shri B. Datta submitted that consideration of the application dated 14th August, 1993 presented on 16th August, 1993 may be deferred. Accordingly, after hearing the counsels for the parties, the hearing of the application was postponed, as prayed by Shri B. Datta.

5.15 The Advocate General of Tamil Nadu presented an application (No.2/93-JCI) dated 6.10.1993 along with affidavit dated 30.9.1993 on 6.10.1993 (Annexure 25) for revising the cut-off date for purposes of sequence of events leading to the assassination of Shri Rajiv Gandhi. Copies of the application were delivered to the Counsels for the other parties. The date for hearing of the application was fixed for 7th October, 1993. At the request of the Advocate General and as agreed to by Counsels for the other parties consideration of the 'larger question of privilege" which was item No.2 on the agenda, was also deferred. On 7.10.1993, the Commission directed that the application filed by the Central Government consideration of which was deferred would also be heard along with the application filed by the Advocate General of Tamil Nadu for revising the cut-off date in connection with the sequence of events leading to the assassination,on 16th November, 1993.

5.16 On 16.11.1993 arguments on the application filed by the State of Tamil Nadu seeking revision of the cutoff date in connection with the sequence of events leading to the assassination were heard and the Commission reserved its order. The hearing of the application (No.l/93-JCI) dated 14.8.1993 moved by the Central Government was adjourned to 17th November. 1993. On 17.11.1993 Shri B. Datta submitted that he does not want to press the application dated 14.8.1993 filed by the Central Government at this stage. He further submitted that he reserves the liberty to move a fresh application if any necessity arises. The application was disposed of as not pressed by the Commission.

5.17 The Commission also rejected the application dated 30.9.1993 filed by the Government of Tamil Nadu seeking revision of the cut-off date in connection with the sequence of events leading to the assassination of Shri Rajiv Gandhi by a separate Order dated 17.11.1993. The Commission in its Order dated 17.11.1993 (Annexure 3) inter alia held as under:

"Sequence of events would also show not only the involvement of V. Prabhakaran and Sivarasan in criminal activities but also of Pottu Omman who was involved in the kidnapping of Mr. Jyotiswaran of the People's Liberation Organisation of Tamil Eelam led by Uma Maheshwaran in 1985. LTTE Supremo V. Prabhakaran and the two other leaders had their roots in Tamil Nadu.

It may be stated that the SIT, in its charge-sheet, as well as Shri D.R. Karthikeyan, Joint Director, CBI, in his affidavit before this Commission, had made mention to the significant event of 1983 ethnic riots in Sri Lanka and made mention of the movement of Tamil Eelam with the avowed object of attaining independent sovereign State within Sri Lanka.

In the opening arguments before the charge in the Designated Court, the Special Public Prosecutor, Shri P. Rajamanickam gave the historical perspective commencing from 1983 ethnic riots and Rajiv's role in Thimpu talks.

Thus, considering the question from all angles and aspects, I am unable to agree with the submission of the Advocate General Shri K. Subramanian that events prior to 29th July 1987 have no relevance or bearing on the assassination of Shri Rajiv Gandhi. The whole origin and genesis of Sri Lankan Tamil militancy in Tamil Nadu has to be gone into and that is the real basis which ultimately facilitated and culminated into the assassination of Shri Rajiv Gandhi.

In the above view of the matter, it is not necessary to examine the question of maintainability of the application in law.

I, therefore, find no valid ground to revise the cut-off date from the year 1981 to 29th July, 1987. To my mind, the application submitted on behalf of the Government of Tamil Nadu has no substance. It is hereby rejected".

5.18 But that was not the end of the matter. The appointment and the jurisdiction of the Commission were challenged in the High Court of Delhi by way of Civil Writ Petition No. 1544/94 (Mushtaq Ahmed Vs. Union of India & Others) under Article 226 of the Constitution as a PIL matter inter alia on the grounds that the orders dated 2.7.1993 and 17.11.1993 passed by the Commission are without jurisdiction and beyond the scope of the terms of reference and that the Notification S.O. No.545(E) dated 23.8 1991 issued by the Government of India in the Ministry of Home Affairs is ultra vires the Commission of Inquiry Act, 1952 and the Constitution (Annexure 4). The Petition came up for preliminary hearing before the High Court on 2.5.1994 without notice to the Commission. The Hon'ble High Court by its Order dated 2.5.1994 (Annexure 5) passed the following interim order: "We have perused the impugned order of the Commission and we grant interim stay of the operation of the order of the Commission dated 17th November, 1993 and also of the order dated 2nd July, 1993 of the Commission pending further orders. The Commission is hereby restrained from going into the events from the year 1981 to 28th July, 1987. It can, however, go into the events on or after 29th July, 1987 but subject to the further condition that it shall only go into the areas not covered by the charge-sheet in the Designated Court at Chinglepat. It can proceed to hold an inquiry in respect of persons and agencies, other than those against whom charge-sheet has been filed in the Designated Court, Chinglepat, who are allegedly responsible for conceiving, preparing, conspiring and planning the assassination of Shri Rajiv Gandhi, former Prime Minister of India. This order will be in force until further orders".

5.19 The Commission had been arrayed as Respondent No.2 in the aforesaid Petition Having been served with a notice from the High Court on 8.7.1994 and as was required by the notice, the Commission filed its affidavit dated 8.7.1994 in opposition inter alia challenging the locus standi of the petitioner for having filed the petition bona fide under PIL in view of the decision of the Supreme Court of India in Janata Dal Vs. H.S. Chowdhary and others (1992 4SCC 305) and urging the Court to dismiss the petition being devoid of merit (Annexure 7). In view of the rejoinder filed by the Petitioner (Annexure 8), the Commission filed reply to the rejoinder affidavit on 5.12.1994 (Annexure 9).

5.20 As a consequence of the interim Order dated 2.5.1994 of the Hon'ble High Court, the Commission had to confine its Inquiry within the parameters laid down by the High Court. On behalf of the Central Government, an application (No.21/94-JCI) dated 25.6.1994 (Annexure 26) was submitted to the Commission on 27.6.1994 with the prayer that the Commission may defer its proceedings till the final disposal of the Civil Writ Petition No.1544/94 pending in the Hon'ble High Court of Delhi.

Paras 3 and 4 of the application read as under:

3. In view of the fact that the Hon'ble High Court of Delhi has restrained the Commission from entering into the enquiry into the events prior to 29th July, 1987, it has become difficult and virtually impossible to segregate, collect, corelate and marginalise the various documents which are to be produced before the Hon'ble Commission. As already submitted before the Hon'ble Commission, prior to 21st May, 1991 (the date of assassination of Shri Rajiv Gandhi) there was no information with Central Government or its agencies about any conspiracy to assassinate Rajiv Gandhi. The difficulty is compounded by the fact that records of the Government relevant for the purpose of enquiry and the documents which are subsequent to 29th July, 1987 may have their genesis in the events prior to July 1987. For the aforesaid reasons production of the documents subsequent to July 1987 may be incomplete in themselves because of the reference made in them to the documents prior to 29th July, 1987. Apparently, in view of the order of the High Court, the various Ministries/ Departments of the Central Government are not in a position to decide as to the relevancy of the documents to be produced before the Hon'ble Commission.

4.That the exercise with regard to the production of the documents and the claim of the privilege thereon was to be undertaken as per the last orders of the Hon'ble Commission by the two Senior Counsels S/Shri B. Datta and Gopal Subramanium in the month of May-June, 1994. However, it has not been possible for both the Counsels to go through the documents due to certain exigencies not foreseen at the time of the order of the Hon'ble Commission. The Central Government has not been able to place all the files, relevant documents and other material before Shri B. Datta, Senior Counsel for the reason that he had to proceed for an overseas visit and Shri Gopal Subramanium, the other Sr. Counsel for Central Government also could not make himself available from the middle of May to middle of June, l994 in view of the specific directions of the Supreme Court appointing him as a Commission to ensure that the orders of the Supreme Court in Sheela Barse's case were implemented. Further, Mr. Subramanium had earmarked 15 May - 7 June for the said purpose. However, Mr. Subramanium could not proceed, as planned in view of the direction that he was asked to proceed Assam forthwith. The work under the said orders is being continued to be done by Mr. Subramanium although he had an attack of Jaundice at Guwahati. Mr. Subramanium had instructed his office that he would not do any other professional work until he completes the work assigned to him by the Hon'ble Supreme Court of India. Mr. Subramanium was in touch with officials of the Ministry of Home Affairs from Guwahati and was explaining his position through his office. 5.21 The application came up for consideration on 30.6.1994. The Commission observed that the Hon'ble High Court in its Order dated 2.5.1994 has not stayed the entire proceedings of the Commission. In para 3 of the Order, the Hon'ble High Court has stayed the operation of the Order of the Commission dated 17.11.1993 and also of the Order dated 2.7.1993 pending further orders. However, the Hon'ble High Court further restrained the Commission from going into the events from the year 1981 to 28th July, 1987. It was also directed that the Commission can however go into events on or after 29.7.1987 with the further condition that it could go into areas not covered by the chargesheet in the Designated Court, Chinglapet. It can proceed to hold the inquiry in respect of persons and agencies, other than those against whom chargesheet has been filed in the Designated Court, Chinglapet, who are allegedly responsible for conceiving, preparing, conspiring and planning the assassination of Shri Rajiv Gandhi, former Prime Minister of India. The Order of the Court was to be in force until further orders. The Commission vide its Order dated 30.6.1994 dismissed the application and held as under :

"It would appear from the above Order that the operation of both the orders dated 2.7.1993 and 17.11.1993, as such, has not been stayed. Its scope of inquiry has been restricted. The Commission cannot go into events prior to 29.7.1987 and it cannot go into areas covered by the chargesheet. For the present, the inquiry is only confined to the first part of the first term of reference i.e. the sequence of events leading to the assassination. This inquiry has to be confined to the period beyond 28.7.1987 and no inquiry can be conducted by this Commission in view of the interim stay order of the Hon'ble High Court from the year 1981 to 28.7.1987. The grounds stated in paras 3 and 4 of the application may or may not be germane to the prayer made in the application. This Commission cannot defer the proceedings till the final disposal of the Writ petition when such deferment or stay has not been ordered by the High Court. If the Central Government wants to seek adjournment, it may move fresh application. Looking to the prayer made in this application, in my opinion this application deserves to be dismissed. Accordingly, it is dismissed".

5.22 The question as to whether LTTE is an agency and no activity of LTTE can be inquired into by the Commission in view of the interim Order dated 2.5.1994 of the High Court of Delhi came up for consideration on 19.12.1994 whereupon the Commission passed the following Order :

"A question was raised in earlier proceedings by the Central Government and Shri Vaidyanathan, Counsel for Tamil Nadu Government officials as to whether the Liberation Tigers of Tamil Eelam (LTTE) is an agency and no activity of LTTE can be enquired into by the Commission in view of the Interim Order dated 2.5.1994 passed by the Hon'ble High Court of Delhi in Civil Misc. Petition No.2827/94 in Civil Writ Petition No.1544/94 - Shri Mushtaq Ahmed versus Union of India and Others. On 2.5.1994 the Hon'ble High Court passed the Order "restraining the Commission from going into the events from the year 1981 to 28th July, 1987". It said that "it can, however, go into the events on or after 29th July, 1987 but subject to the further condition that it shall only go into the areas not covered by the chargesheet in the Designated Court at Chengalpet. It can proceed to hold an inquiry in respect of persons and agencies, other than those against whom chargesheet has been filed in the Designated Court, Chengalpet. who are allegedly responsible for conceiving. preparing, conspiring and planning the assassination of Shri Rajiv Gandhi, former Prime Minister of India.

It would appear from the above Order that the Hon'ble High Court has allowed this Commission to hold an inquiry in respect of persons and agencies other than those against whom chargesheet has been filed in the Designated Court and it has been restrained from going into the areas covered by the chargesheet. The areas covered by the chargesheet thus are outside the scope of inquiry of this Commission in view of the Interim Order of the High Court. This Commission has also been restrained to go into events from the year 1981 to 28.7.1987 and it can go only into events on or after 29.7.1987.

The Commission also, vide its Order dated 2.7.1993, confined the inquiry for the present to the areas outside the chargesheet and placed a restraint on itself that it would not go into areas covered by the chargesheet for the present, and vide its Order dated 1.6.1993 the Commission confined the inquiry in the beginning to the first part of the first term of reference i.e. the sequence of events leading to the assassination of Shri Rajiv Gandhi. What are the areas covered by the chargesheet and what are the areas outside the chargesheet is an important matter to be considered by the Commission in order to continue with the inquiry. Unless the areas covered by the chargesheet are identified and specified, it would be difficult for the Commission to continue with the inquiry. It is in this connection that the question arose as to whether LTTE is an agency and no activity of LTTE can be enquired into by the Commission in view of the Interim Order of the High Court. The Central Government is in possession of the entire material and it is only the Central Government which can specify and identify the areas covered by the chargesheet. The Commission is not aware of the entire matter relating to the chargesheet. Although a copy of the chargesheet has been filed but the necessary documents and material exhibits and oral evidence which may be adduced in order to prove any allegation in the chargesheet, is not known to the Commission. What areas are covered by the chargesheet, in what manner, to what extent and in relation to what aspects are only known to the Central Government. The Central Government should therefore identify the areas covered by the chargesheet so that the Commission may continue to hold the inquiry into areas other than those which are covered by the chargesheet. Shri B. Datta, learned Counsel for the Central Government, stated that this would require an exercise so that the areas covered by the chargesheet may be made known to the Commission and for that he prayed for three weeks' time. In view of the Interim Order of the High Court, I consider it necessary to allow to the Central Government three weeks' time so that the Commission may proceed to continue with the inquiry into areas not covered by the chargesheet. Three weeks' time is allowed as prayed.

From the Order of the Hon'ble High Court, it would appear that the Hon'ble High Court has permitted this Commission to hold an inquiry in respect of persons and agencies other than those against whom chargesheet has been filed. It would be appropriate at this stage when more than three years have already passed since the constitution of this Commission, that this Commission may hold an inquiry into the rest of the terms of reference of this Commission i.e. the second part of the first term of reference and the second term of reference. This was deferred earlier so that trial may proceed expeditiously and during that time inquiry may be conducted into the first part of the first term of reference i.e. "the sequence of events leading to the assassination of Shri Rajiv Gandhi, former Prime Minister of India". But this has to be done subject to the Interim Order of the High Court. The Commission will now proceed to hold an inquiry into all the terms of reference of this Commission including the second part of the first term of reference and the second term of reference subject to the Order of the Hon'ble High Court. The matter will now be taken up on 3.2.1995 after identification of the areas covered by the chargesheet by the Central Government."

5.23 The Civil Writ Petition No.1544/94 came up for further hearing before the High Court on 1.2.1995 when the High Court by its Order dated 1.2.1995 (Annexure 10) modified its interim Order dated 2.5.1994 and inter alia held as under:

"It was always open and it is always open .....on the Commission to go ahead with both parts of first issue (a) and second issue (b) and in terms of the statement made by its Counsel Mr. K.L. Arora ......so as not to jeopardise and prejudicially affect the inquiry in the Designated Court at Chinglepat". As to the question whether the inquiry could be for the period from 1981 to 29.7.1987, the matter will be heard separately and to that limited extent, our interim Order dated 2.5.1994 will continue until further orders".

5.24 The Hon'ble High Court of Delhi disposed of Civil Writ Petition No.1544/94 and CM No.6783/95 by its order dated 16.11.1995 (Annexure 11) and held as under: "It is stated by the Counsel for the Commission before us, Shri G.L. Sanghi, firstly that whenever any matter comes up before the Commission in the evidence or in the arguments concerning the guilt of the 41 accused persons in the chargesheet before the Designated Court at Madras, the Commission will conduct the inquiry in camera. Secondly that as far as possible, the questions that may be put to the witnesses before the Commission will not be allowed to cover the aspects coming within the purview of the chargesheet against the 41 accused persons before the Designated Court.

In view of the above safeguards which the Commission has come forward to provide, we are of the view that the interests of the criminal trial before the Designated Court against the 41 accused persons are sufficiently safeguarded. We therefore do not think it necessary to accede to the request of the Union Government that the conspiracy part of LTTE or any other agency/ organisation should be excluded from the purview of the Commission.

For all the reasons set out above, we do not also think it any longer necessary to restrict the scope of the inquiry from 29.7.1987 to 21.5.1991. It will therefore be open to the Commission to go into events even from 1981".

5.25 But that were not to be the final verdict on the issue. The Central Government challenged the Order of the Delhi High Court dated 16.11.1995 in the Supreme Court of India by way of Special Leave Petition No.13/96 (Union of India Vs. Mushtaq Ahmed and Others). The Special Leave Petition came up for preliminery hearing before the Hon'ble Supreme Court on 15.1.1996 when the Court passed the following Order (Annexure 13): "The learned Solicitor General states that he may be permitted to withdraw this petition as the Government would take such action as it deems necessary. The SLP will stand dismissed as withdrawn "

5.26 Thereafter the Order dated 28.12.1995 passed by the Commission requisitioning from the Director, CBI photocopies of Parts I, II and III of Crime File No.RC/9/S/91-SCP to be produced within ten days pursuant to AICC(I)'s application No.48/95-JCI dated 14.10.1995 (Annexure 27) was challenged by the Central Government before the Supreme Court of India by way of Special Leave Petition No.773 of 1996 (Union of India Vs. Anwar Ahmed Patel). The SLP came up for hearing before the Supreme Court on 25.1.1996. The Hon'ble Supreme Court while dismissing the SLP by its Order dated 25.1.1996 Annexure 14) held as under:

"We have read the terms of reference to the Jain Commission. They are very broad. Only that is not covered which was before the Verma Commission. If so, advised, the applicant, which has itself made the reference, can amend the terms so as to exclude from the purview of the Jain Commission, altogether or for the time being, matters presently before the Designated Court. Our interference is not called for".

5.27 On 30.1.1996, Shri K.T.S. Tulsi submitted before the Commission that the implications of the Order of the Hon'ble Supreme Court passed in the SLP No.773/96 on 25.1.1996 were under active consideration of the Government. The question relating to amendment of the terms of reference of this Commission was being examined at different levels and advice of the Commission may also be sought. Ultimately the matter would be considered by the Cabinet. A final decision on this question by the Government was likely to take four weeks. So, for production of documents and for taking a final decision in the matter of amendment of the terms of reference, four weeks' time may be allowed. This prayer of the Central Government was vehemently opposed by Shri R.N. Mittal, Counsel for the AICC(I). Thereupon the Commission inter alia passed the following Order on 30.1.1996:

"I need not enter into the submissions made by Shri R.N. Mittal in this regard who seriously objected to the conduct of the Government and he also tried to trace the history with regard to the proceedings before the Commission...... So far as the production of Parts I, II and III of the Crime File is concerned, whatever parts are available with the Director, CBI, the same be filed within a week and the remaining parts which are not available with the CBI at Delhi, the flame be filed within two weeks.

As regards the decision with regard to the amendment in the terms of reference, it may be stated that it is entirely the lookout of the Government. The Commission can give no advice as it is outside its jurisdiction and it is within the exclusive domain of the Central Government. The Commission would proceed as per the decision of the Government after the same is communicated to it".

5.28 Also on the evening of 30th January, 1996 the Commission received a letter dated 27.1.1996 from Shri P. Chidambaram, the then Minister of State for Commerce inter alia suggesting that the senior officers of the Ministry of Home Affairs and the CBI will seek my views on how the terms of reference could be suitably amended in order to enable the Designated Court to complete the trial without let or hindrance and without giving any room to the accused to raise any technical defences and thus delay the trial. I replied to Shri P. Chidambaram's letter on 2nd February, 1996. In my reply to Shri P. Chidambaram I referred to the submissions made by Shri K.T.S. Tulsi before the Commission on the morning of 30th January, 1996 and reiterated the views which I had expressed in my Order dated 30.1.1996 as under:

".........it is entirely the lookout of the Government. The Commission can give no advice as it is outside its jurisdiction and it is within the exclusive domain of the Central Government. The Commission would proceed as per the decision of the Government after the same is communicated to it".

Thereafter I did not hear from the Central Government in the matter.

5.29 In retrospect, it was the then Attorney General of India who first objected to the jurisdiction of the Commission when he contended before the Commission on 27.9.1992 that the Commission has no jurisdiction to probe the areas covered by the SIT chargesheet. It however took three and a half years before the issue was finally decided by the Hon'ble Supreme Court by its Order dated 25.1.1996 vindicating the stand of the Commission. But in the process the pace of the Inquiry was considerably slowed down and its progress greatly hampered.

NUMBER OF SITTINGS HELD, NUMBER OF WITNESSES EXAMINED -AND EXHIBITS MARRED, ETC

5.30 As noticed earlier, the first sitting of the Commission was held on 31st July, 1992 and since then the Commission has held 300 hearings. Of these, 167 sittings were held in public and 92 'in camera', while 41 sittings were held partly in public and partly 'in camera'. The Commission has examined so far 101 witnesses of which 57 witnesses were examined by the Commission on its behalf. It has marked 1002 exhibits (668 in public and 334 'in camera'). 5.31 The Commission has till date received 377 affidavits and their break-up is as under: (1) In response to 5(2)(b) Notice 1 (2) In response to 5(2)(a) Notices - 84 (3) In response to questionnaires - 172 (4) 'In response to 8-B Notices - 12 (5) In response to Commission's - 91 orders (6) Filed by others - 17 voluntarily: - 11] in response to summons - 6 ] Total - 377 Particulars of these affidavits are given in Annexures 19, l9A, 20, 22, 28 and 29 respectively.

5.32 The Commission has been informing the Ministry of Home Affairs, Government of India about the progress of the Inquiry from time to time during the past six years of its existence. The first Note regarding the progress of the Inquiry was sent to the Ministry on 7.2.1994 (Annexure 30), the second on 18.7.1994 (Annexure 31), the third on 28.3.1995 (Annexure 32), the fourth on 26.4.1995 (Annexure 33) and the last on 30.8.1996 (Annexure 34).