INQUIRIES AND INVESTIGATION BY ADMINISTRATION 2014

INQUIRIES AND INVESTIGATION BY

ADMINISTRATION
SUBMITTED TOWARDS THE FULFILMENT OF THE
COURSE TITLED

ADMINISTRATIVE LAW
Submitted by:

Submitted to:

ROHIT KUMAR (600),

DR.ALI

(3rd year, 6th Semester)

Faculty: Administrative law

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ACKNOWLEDGEMENT
The

present

project

on

the

topic

INQUIRIES

AND

INVESTIGATION

BY

ADMINISTRATION has been able to get its final shape with the support and help of
people from various quarters. My sincere thanks go to all the members without whom the
study could not have come to its present state. I am proud to acknowledge gratitude to the
individuals during my study and without whom the study may not be completed. I
have taken this opportunity to thank those who genuinely helped me. In the completion of
this project many people helped us directly and indirectly. First of all we would like to
thank my university i.e. CHANAKYA NATIONAL LAW UNIVERSITY, PATNA, who
gave us the idea and encouragement to venture into this project.
I am grateful to our faculty of Constitutional Law, Dr. ALI who gave us the opportunity to
make a project on INQUIRIES AND INVESTIGATION BY ADMINISTRATION.
Any sort of addition, alteration and criticism regarding our work is most welcome.
I have made every effort to acknowledge credits, but I apologies in advance for any omission
that may have inadvertently taken place.
Last but not least I would like to thank Almighty whose blessing helped me to complete the
project.
ROHIT KUMAR

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RESEARCH METHODOLOGY

AIMS & OBJECTIVES:

The aim of the project is to present a detailed study of INQUIRIES AND
INVESTIGATION BY ADMINISTRATION

through decisions and suggestions

and different writings, articles & reports.

SOURCES OF DATA:
The following secondary sources of data have been used in the projectArticles
Books
Websites
METHOD OF WRITING:
The method of writing followed in the course of this research paper are doctrinal as well
as non-doctrinal.
MODE OF CITATION:
The researcher has followed a uniform mode of citation throughout the course of this
research paper.

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TABLE OF CONTENTS
1. INTRODUCTION..5
2. NEED FOR ADMINISTRATIVE INQUIRY6
3. FUNCTIONS.6
4. SCOPE..8
5. PROCEDURE.10
6. LEGAL STATUS....11
7. POWERS TO OBTAIN INFORMATION12
8. SEARCH & SEIZURE...12
9. SELF INCRIMINATION..13
10. JUDICIAL REVIEW.14
11. CONCLUSION.15
12. BIBLIOGRAPHY...16

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INTRODUCTION
To enable the administration to discharge effectively the multifarious functions entrusted
to it, it needs to exercise broad powers of conducting investigation and inquiry into
various matters. The primary purpose of this technique is to collect information with a
view to decide upon a further course of action to meet a given situation, or to find
correctives to a given problem. The administration, in the context of todays complicated
socio-economic life, has come to depend more and more on ascertainment of facts. It is
right to say that an action taken in ignorance of full facts may not only fail to correct the
given situation, but may even create problems. The policy-maker or the administrator
can initiate effective remedial measures to deal with specific problems only when he is
in full possession of the relevant information, facts and figures, and to collect these,
inquiries and investigations become inevitable tools in the hands of administrators.
The use of compulsory processes by the administration to collect information from an
individual interferes with his liberty. While an investigation or inquiry may not always
result in any follow-up action subsequently, and may not subject the individual
concerned to any liability, nevertheless, the initiation of investigation by itself may have
serious consequences for him. He may be subjected to a good deal of physical
inconvenience, mental agony and expenses and hi reputation and business may stand
injured in the process. It is, therefore, necessary to reconcile the administration exigency
of holding an investigation into the affairs of an individual with his interests and rights
by providing adequate safeguards subject to which the administration may invoke its
power of investigation.
Investigations and inquiries are resorted to for various purposes, such as, rule-making,
law enforcement, adjudication of disputes, supervision, licensing, collecting information
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and for purposes no more specific than illuminating obscure areas to find out what if
anything should be done.1

THE NEED FOR ADMINISTRATIVE INQUIRY

Statutory inquiry: Many administrative and quasi-judicial authorities exercising
statutory powers are required to make some preliminary inquiry as a condition precedent
to the exercise of such power, e.g.; hearing objections at a local inquiry before making
an order of compulsory acquisition of land, under the Acquisition of Land Act, 1946, in
England,2 or under s. 5A of the Land Acquisition Act, 1894,3 in India.
The need for such inquiry, broadly speaking, is to collect the views of the parties to be
affected by the exercise of the statutory power, together with the relevant facts, and to
place them before the government or other authority for its consideration in exercising
the power, though, of course, the statutory authority is not bound to act according to the
inquiry report but must exercise his independent view.4 The procedure to be followed at
these inquiries is laid down in the statute itself or in the statute rules. Generally speaking,
the party affected by the resulting statutory order must be given notice of the inquiry. 5
Ad hoc inquiry: In the present inquiry, ad hoc, is to make some investigation as to any
administrative matter of public importance, in order to enable the Government to obtain
facts and other materials involved in such matter. In England, administrative inquiries of
the present type are not governed by the Tribunals and Inquiries Act, 1958.

DAVIS, I ADMINISTRATIVE LAW TREATISE 160 (1958). Also Wraith and Lamb, PUBLIC
INQUIRIES AS AN INSTRUMENT OF GOVERNMENT (1971)
2

Similar provisions exist under the (English) Town & Country Planning Act, 1962; the New Town Act,
1946; the Pipelines Act, 1962; the Local Government Act, 1958 (s. 23); the Housing Act, 1957 (Part III)
3
Cf. Nadeswar Prasad v. U.P Govt, A 1964 S.C. 1217(1220).
4
Nelsovil v. Minister of Housing, (1962) 1 ALL E.R 423 (426).
5
Brown v. Minister of Housing, (1953) 2 ALL E.R 1385.

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FUNCTIONS OF COMMISSION OF INQUIRY

In England a tribunal may be set up under the Tribunals of Inquiry (Evidence) Act, 1921,
when both Houses of Parliament resolve that it is expedient so to do to inquire into a
definite matter of urgent public importance.
In India, similarly, provision for the setting up of a Commission of Inquiry 6 to make
investigation into any matter of public importance has been made by enacting the
Commissions of Inquiry Act, 1952. Either the Government of India or the Government
of a State can avail itself of the provisions of this Act, provided the conditions prescribed
by Section. 3 of this Act are satisfied.
It is evident from the provision that when a resolution in that behalf is made by the
Legislature, the appropriate government is bound to a Commission of Inquiry under this
Act.7 Even in the absence of such resolution, the appropriate Government may appoint
such commission to make an inquiry into a matter of public importance within its own
jurisdiction.8
There is nothing to bar a succeeding Ministry from advising the Governor to order
inquiry against an outgoing Ministry. 9 Nor is there any legal bar to the appointment of an
inquiry during the pendency of a suit or prosecution where the subject-matter before the
Commission is different from that before the Commission.10
6

A Commission of Inquiry set up under the above Act is to be distinguished from specific administrative
Commissions which are created by statutes for the purposes of those Acts. e.g.; the Tariff Commission
under the Income-Tax Investigation Commission Act, 1947, to report on taxation on income, with
particular refrence to evasion; a commission to inquire into production in any industry under the Industries
(Development & Regulation) Act, 1951.
7
Notable examples of such commissions are the Chalga Commission to inquire into the affairs of
Mundhra; the Tendolkar Commission to inquireinto the affairs of the Dalmia; the Bose Commission
regarding the Allenbery Co.; the Ayyangar Commission regarding the conduct of Bakshi Ghulam
Mohammad.
8
Cf. Jagannath v. State of Orissa, A. 1969 S.C 215 (218), for an instance of a governor appointing a
Commission without a resolution in the State Legislature.
9
Krishna Bhalla v. Commn. Of Inquiry, A. 1969 S.C 258 (261).
10
Shambhu v. Kedar, AIR 1972 S.C. 1515.

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SCOPE OF THE FUNCTIONS OF A COMMISSION OF INQUIRY

The inquiry made by a Commission of Inquiry under the Act of 1952 is not a
judicial or quasi-judicial inquiry. Its only function is to investigate facts and
record its findings thereon and then to report to the Government in order to
enable it to make up its mind as to what legislative or administrative measures
should be adopted to eradicate the evil found or to implement the beneficial
objects it as in view.

The Commission has no power of adjudication in the sense of passing an order

which can be enforced proprio vigore. For the same reason, even though the
commission may make recommendation to the Government as to what measures
may be adopted, including punishment for future action as a deterrent for
delinquents in future, yet, not being a court, it cannot recommend the taking of
action by way of punishment of the wrongdoer for past acts, for punishment for
wrongs already committed can be imposed only by a court of law.

The purpose of inquiry may be

(a) To ascertain facts as to enable the appropriate Legislature to undertake legislation

relating to a matter of public importance.
(b) To make an administrative investigation into certain facts, it is legitimate to hold
an inquiry for investigation of facts for the purpose of taking appropriate
legislative or administrative measures to maintain the purity and integrity of
political administration in the state.

A matter does not cease to be of public importance merely because the minister
who is involved has ceased to hold his office,11 or because there has been no
public agitation over it.12

11
12

State of J. & K. v. Ghulam Mohammad, A. 1967 S.C. 122 (127)

Ibid.

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In order that a Commission may effectively carry out the foregoing powers, it
may exercise ancillary powers, e.g
a. To collect materials;
b. To record its findings on the facts investigated;
c. To express its views on the facts so found;
d. To recommend future action, as an advisory body;
e. To permit inspection of documents produced before it, to a party
appearing in the matter.13

On the other hand, the Legislature or the executive cannot usurp judicial powers
belonging to the courts by setting up a Commission of Inquiry. 14 Hence, a
Commission of Inquiry cannot be set up with power to recommend the action
which should be taken as and by way of securing redress or punishment, the
latter being functions of a court of law.15

The Supreme Court has held16 (6:1) that allegations into the conduct of Ministers
of a State Government is a matter of public importance, which the Union
Government would be competent to inquire into, as the appropriate
Government under s. 3(1) of the Commission of Inquiry Act, 1952. If so, in such
a matter both the Union and State Governments would be entitled to exercise the
power under this Act, to appoint parallel Commissions.

Under s. 7(1) (a), the Government has the discretion to discontinue a

Commission if at any time it is of the opinion that the inquiry was necessary; and
the court cannot quash such order in the absence of malafides.

Since the Commission is simply a fact-finding body, without any power of

adjudication, there is no bar to its appointment pending any litigation.

13

State of Beri, A. 1968 Raj 77 (78)

Ramkrishnan v. Tendolkar, A. 1958 SC 538 (545)
15
Ibid
16
State of Karnatka v. Union of India, A. 1978 S.C 68
14

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PROCEDURE OF THE COMMISSION

Subject to any rules made by the appropriate Government in this behalf, the
Commission of Inquiry may regulate its own procedure and to decide
whether it will sit in private or in public. 17 The Commission has the power of
a civil court in respect of summoning of witnesses; production of documents,
receiving evidence on affidavits and such other powers as may be specified in
the notification creating the Commission.

Since the Commission of Inquiry is an administrative body and not a judicial

or quasi-judicial tribunal, it is not bound by the rules of evidence. It is not
trying any cause between contesting parties and its proceedings are not as
formal as in a judicial inquiry.

The Commission may proceed on affidavits and there is no scope for crossexamination of any witness by a party likely to be affected by the
proceedings of the Commission unless the witness gives oral evidence.18

Since the proceedings before the commission is not a quasi-judicial

procedure, and the Commission is a purely fact-finding body, there is no
question of invoking the rules of natural justice, except in so far as they are
incorporated in the Act itself.

17
18

Sec. 8
Ibrahim v. Susheel, A. 1984 A.P 69

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LEGAL STATUS OF COMMISSION

Not being a quasi-judicial body, the members of a Commission of Inquiry

claim that absolute privilege from defamation which belongs to judicial
and quasi-judicial authorities.

Similarly, not being a court, the members of a Commission of Inquiry

cannot, in the absence of statutory protection, claim immunity from
contempt of court. But they cannot be held guilty for contempt merely by
reason of the fact that the commission has been set up for inquiryninto
same matter relating to which a suit or other proceeding is pending in a
court of law, because the scope of the Commission and the court are
altogether different.

Conversely, the law of contempt being applicable only to courts of justice

and to the judges of such courts, 19 and a Commission of Inquiry not being
a court, a person cannot be convicted for the offence of contempt of court
for offending utterances against a Commission of Inquiry, in the absence
of statutory provision in that behalf.20

It follows that a Commission of Inquiry, in India, cannot punish anybody

under the Contempt of Courts Act, for violating its own orders.

As a statutory body, a Commission of Inquiry is subject to the writ

jurisdiction of the High Court under Arts. 226 and 227.

On the other hand, the Commission being a temporary body, not having
continuous sittings, where a High Court judge is appointed as a
Commission of Inquiry, he does not demit his office as a judge or cease to

19
20

A.G v. B.B.C, (1980) 3 ALL E.R 161 (H.L)

Badry v. D.P.P, (1983) 2 W.L.R 161 (170) P.C

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have the power to sit and act as a Judge of the High Court whenever he
has time to do so.

POWERS TO OBTAIN INFORMATION

Information of varied character is usually needed by administrative authorities to better
discharge their assigned functions. To this end, statutes confer coercive powers on these
authorities enabling them, inter alia, (1) to require filing of reports and returns; (2) to
summon witnesses; (3) to compel production of documents; (4) to search and seize; (5)
to inspect. Some statutes like the Income-tax Act, 1961 confer all these powers; some
like the Commissions of Inquiry Act, 1952 confer some of these powers, and some
confer only one of these powers. An authority can, however, employ only such of the
coercive processes as the statute in question sanctions. No coercive method can be
employed without the authority of law.21 Thus, if a body does not have legal power to
compel attendance of the witnesses or production of the documents then it can only issue
letters requesting persons to appear and/or produce documents and it is open to the
persons so requested to comply with the some or not.

SEARCH AND SEIZURE

Powers of search and seizure are gradually assuming importance in this administrative
age. Powers of search and seizure are being increasingly conferred on administrative
authorities under various statutes for law enforcement. A power of search and seizure in
any system of jurisprudence is an overriding power of the State for protection of social
security and that power is necessarily regulated by law. 22 Section 18 of the Central
Excises and Salt-tax Act, 1944, sec 5(3) of the Commissions of Inquiry Act, 1952, sec
132 of the Income Tax Act, 1961 are only a few, amongst a horde, of such statutory
21

Law assumes the existence of rights and liberties of the individual and steps in for regulating those
rights and liberties in the interest of social living. Deoman v. State, AIR 1959 Bom. 284
22
M.P Sharma v. Satish Chander, AIR 1954 SC 300, para 18

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provisions authorizing the respective authorities under them to exercise the power of
search and seizure. The power of search and seizure is of a drastic nature as its exercise
constitutes a serious invasion of the affected individuals privacy, freedom, business and
reputation. Therefore, to minimize the chance of such power being misused, the question
of procedural safeguards, subject to which such a power may be exercised, becomes a
matter of some significance.

SELF INCRIMINATION
A fundamental canon of Anglo-American criminal jurisprudence is the privilege against
self-incrimination which is guaranteed in India by Article 20(3) of the Constitution
which runs as: No person accused of any offence shall be compelled to be a witness
against himself. At times, certain statutes also provide the same protection, e.g., section
6 of the Commissions of Inquiry Act, 1952.
Article 20(3) as interpreted by the Supreme Court, has become inapplicable to
administrative inquiries. In Raja Narayanlal v. Mistry,23 on receiving the report of the
Registrar of Companies that the appellants managed companies were being run in fraud
of the contributories and disclosed an unsatisfactory state of affairs, the Government of
India appointed an inspector to investigate into the affairs of the companies in question.
The inspector who could examine any person on oath was told to bear in mind that for a
successful prosecution of the appellant, the evidence in support of the charge mst be
clear, tangible and cogent. The appellant claimed the privilege against selfincrimination under Article 20(3) on the ground that the main object behind
investigation was to discover whether he had committed any offence or not. Rejecting
his claim, the court held that the privilege was available to accused person only, and as
no formal accusation was laid against the appellant, he could not claim the privilege. The
report of the registrar could hardly amount to an accusation; it was submitted to the
Government to enable it to decide whether it could undertake an investigation. The
purpose of the inquiry was to find out how the affairs of the company were being carried
on; a prosecution might be launched ultimately against the appellant but that could not
retrospectively change the complexion or the character of investigation.
23

AIR 1961 SC 29

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JUDICIAL REVIEW OF ORDERS OF A COMMISSION OF INQUIRY

In India, it has been held that the appointment of a Commission of Inquiry can be
challenged on the ground of ultra vires or mala fides.
Denial of procedural fairness is clearly an available ground in review of decisions made
by non statutory investigations, as illustrated in the cases considered above.24 The
grounds of review which comprise abuse of power, such as taking into account irrelevant
considerations or Wednesbury unreasonableness, depend upon construction of the statute
as a whole in order to determine whether a discretionary power has been abused. In the
absence of a statutory description of the ambit of power, the task of determining whether
a power is abused becomes difficult. However there is no fundamental doctrine
precluding review on these grounds and they were considered in the context of a nonstatutory inquiry in The State of Victoria v The Master Builders. Association of
Victoria.25
Section 3(1) of the Act 1952, has come up before the courts for interpretation of the
conditions specified in the above provision, and it has been held that when an order
constituting a Commission under this Act is made, the party into whose affairs the
investigation is directed is challenged the validity of the order on the following grounds,
inter alia:
1. That the conditions specified in section 3(1) have not been fulfilled.
2. That the order is mala fide, but mere existence of political rivalry is not enough.
3. That the order is unconstitutional, having violated Art 14 of the Constitution.
4. That the order is ultra vires.
24

Council of Civil Service Unions v Minister for the Civil Service (GCHQ Case) [1985] AC 374; Minister
for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; State of Victoria v Master
Builders Association of Victoria [1995] 2 VR 121; Community Advocate v Gallop and Attorney-General
(ACT) [2002] ACTSC 45 (unreported, Supreme Court of the ACT, Crispin J, 30 May 2002).
25
[1995] 2 VR 121.

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CONCLUSION
The first concern of an investigator must be to ensure that the investigation does not step
outside the ambit of the relevant statutory power. A so-called non-statutory investigation
may be no more than an ultra vires exercise of power, with serious consequences in the
event of any attempt to exercise coercive power. On the other hand there is nothing to
stop government asking questions of anybody and thus conducting an investigation
outside any statutory framework. This may involve an exercise of prerogative or
common law power. Such an investigation may be subject to privacy legislation and
certainly must comply with the common law principles of procedural fairness. It may
also be subject to judicial review. While a non-statutory investigation operates outside
the parameters of a statute, it does not operate beyond the reach of administrative law.
An investigation undertaken outside any statutory framework may be no more than an
instance of ultra vires administrative action. On the other hand, a non-statutory inquiry
may legitimately be established to give advice or implement a program. Such an inquiry
may need to determine on the basis of first principles issues relating to procedure and the
proper ambit of its powers. If the investigator fails to recognize the issues he or she may
contravene common law principles or applicable general legislation such as freedom of
information, privacy or archives legislation, copyright laws applying to tapes and
transcripts created in the course of the investigation and the law of defamation and
qualified privilege with respect to the ultimate report. If the investigation is conducted in
a context involving litigation, proper responses also need to be made to subpoenas or
discovery.

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BIBLIOGRAPHY
(1) Clashfern Lord Mackay of, Halsburys Law of England, Volume 1(1),
Butterworths London, Fourth Edition- 2001 Reissue.
(2) Jain Prof. M P, Administrative Law, Halsburys Laws of India, Volume-1,
LexisNexis Butterworths, New Delhi, Edition- 2004.
(3) Jain M P, Jain S N, Principles of Administrative Law, Wadhwa Nagpur, Fifth
Edition-2007.
(4) Massey Dr. I.P, Administrative Law, Eastern Book Company, Lucknow,
Seventh Edition-2008.
(5) Sathe SP, Administrative Law, LexisNexis Butterworths, New Delhi, Seventh
Edition-2004.
(6) Sharma B C, The Law of Ultra Vires, Eastern Law House, Kolkata, Edition2004.
(7) Singh M P, Duty To Give Reasons For Quasi-Judicial And Administrative
Decisions, 21 JILI 45 (1979).
(8) Thakker Justice C.K., Administrative Law, Eastern Book Company, Lucknow,
Edition-1996.

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