Hindu Vivek Kendra
A RESOURCE CENTER FOR THE PROMOTION OF HINDUTVA
   
Preliminary

  On the night of January 22nd /23rd 1999 a macabre murder took place in a remote village Manoharpur, in District Keonjhar, in the State of Orissa.  Graham Stewart Staines, an Australian missionary and his two small children were all burnt to death while they were sleeping in a station wagon.  The barbarity of the crime shook the whole nation.  Every Indian had to hang his head in shame.  The President of India Mr. K.R. Narayanan described the killing as "belonging to world's inventory of black deeds".  He said "That someone who spent years caring for patients of leprosy, instead of being thanked and appreciated as a role model should be done to death in this manner is a monumental aberration from the traditions of tolerance and humanity for which India is known".  The President spoke for every Indian.  There was all round condemnation in India and abroad of this gruesome crime.

            Considering the gravity of the matter, Central Government in the Ministry of Home Affairs issued a notification on 29th January, 1999 under Section 3 of the Commissions of Inquiry Act, 1952 appointing this Commission to make inquiry with respect to the following matters: -

(a)  the facts and circumstances relating to the killing of Mr. Graham Stewart Staines, an Australian national and his two sons on 22nd  /23rd January, 1999 in village Manoharpur, District Keonjhar, State Orissa.,

(b)  the role, if any, played by any authority, organization or individual in/or in connection with the aforesaid killings; and

(c)  any other matter connected with or incidental thereto as the Commission may consider appropriate.

            With the approval of the Chief Justice of India I was appointed Commission of Inquiry "for the purpose of making an inquiry into a definite matter of public importance, namely, the killing of Mr. Graham Stewart Staines and his two sons." The Commission was to submit its report to the Central Government as soon as possible but not later than two months from the date of publication of the notification.  The provisions of subsections (2) to (5) of Section 5 of the Commissions of Inquiry Act, 1952 ('Act') were made applicable to the Commission.  The Notification dated 29th January, 1999 was amended by another Notification dated 25th March, 1999 and the time for submission of the report by the Commission was extended to five months instead of two months.

            The Commission framed its Regulations called the 'Justice Wadhwa Commission of Inquiry (Regulations of Procedure) Order, 1999'.   Public Notices were published on 23rd February, 1999 and again on 26th February, 1999 in various newspapers  both in  English and Oriya circulating in the State of Orissa and also in national dailies.  The Public Notice read thus :

"Whereas in exercise of the Powers conferred by Section 3 of the Commissions of Inquiry Act, 1952, the Central Government vide its Notification NO.SO 45 (E) dated 29th January, 1999 has appointed a Commission of Inquiry comprising of Hon'ble Mr. Justice D.P. Wadhwa, a sitting Judge of the Supreme Court of India to make inquiry into the following matters :-

a)  The facts and circumstances relating to the killing of Mr. Graham Stewart Staines, an Australian national and his two sons on 22nd /23rd January 1999 in village Manoharpur, District Keonjhar, State Orissa;

b)  the role, if any, played by any, authority, organisation or individual in/or connection with the aforesaid killings; and

c) any other matter connected with or incidental thereto as the Commission may consider appropriate

Notice is hereby given that all individuals, group of persons, Associations, Institution and organisations, having knowledge, directly or indirectly, of facts and circumstances relating to matters referred to the Commission, and having interest in the proceeding before the Commission or who wish to assist the Commission in making its suggestions, may submit their statement of facts/allegations supported by affidavit duly verified by the deponent and sworn before a Metropolitan Magistrate or Judicial Magistrate, first class or a Commissioner of Oath or any other person authorised to administer oath along with one spare copy thereof, before the Commission on any working day (except Sundays and holidays) between 9.30 a.m. to 5.30 p.m. either in person or through Registered Post at the office of the Commission at either of the places noted below within 15 days of the publication of this notice.

The affidavit shall be verified in the following manner :-

"Verified that the statements made in paragraphs ________ of the above affidavit are true to my personal knowledge and those in paragraphs ________ from information received and believed to be, true by me".

The Magistrate or Commissioner of Oath or Authority legally empowered to confer oath before whom the affidavit is sworn, shall make endorsements thereon in the following manner :-

"Sworn before me by the deponent who is identified to my satisfaction by ________ or is personally known to me.  The affidavit has been read out in full to the deponent who has signed it after admitting it to be correct, on this the ________ day of _______, 1999."
 

(Signatures & Seal of the Magistrate.)
 The affidavit must state of occupation and the ordinary place of residence/abode of the deponent.  If considered necessary the deponent may file along with his affidavit a list of witnesses.

If the affidavit is in a language other than in English, it shall be accompanied by a translation thereof in English duly authenticated by an advocate or a Magistrate.

In the event of any person wanting to share any information (in confidence) with the Commission which is relevant or material to the terms of the Inquiry he may contact the Secretary of the Commission or any other Officer duly authorised in this behalf.
 

CAUTION:

Be it noted that the proceedings before the Commission are judicial proceedings under subsection (5) of Section 5 of the Commissions of Inquiry Act, 1952.  Any person found to have made false or misleading statement or allegation before the Commission shall be liable to punishment under Section 193 of the Indian Penal Code with imprisonment for a term which may extend to seven years and shall also be liable to fine.
 

NOTE:

Copies of the Commissions of Inquiry Act, 1952, the Commissions of Inquiry (Central Rules), 1972 and the Justice Wadhwa Commission of Inquiry (Regulation of Procedure Order), 1999 can be obtained from the office of the Commission.

All affidavits submitted in the manner stated above and within the time prescribed may be addressed to :
 

1. MR. D.G.R. PATNAIK                        2.  OFFICER ON SPECIAL DUTY
Secretary,                                                    Justice Wadhwa Commission of Inquiry
Justice Wadhwa Commission of Inquiry,      A/19, IRC Rental Colony,
Room No.322, 2nd Floor                            Nayapalli,
Vigyan Bhawan Annexe,                              Bhubaneshwar - 751015.
Maulana Azad Road,
New Delhi - 110 011.
 

            Pursuant to the Public Notice so issued, 83 affidavits were received.

            The first regular proceeding of the Commission was held on 26th March, 1999.  Further time was granted till 6th April, 1999 if any individual or association wanted to file an affidavit.  It was specifically ordered that after that no further affidavit would be entertained.  Notices were again ordered to be published in the newspapers both in English and Oriya languages.  It was also directed that handbills shall be circulated in the village Manoharpur and the adjoining villages informing the public about the proceedings of the Commission, its terms of reference and about the public hearing to be conducted by the Commission.  Notices had also earlier been issued to the State of Orissa and the Central Government and their officers to file affidavits.

            In all 152 affidavits were received and scrutinized.  Investigating Team of the Commission was constituted.  The Investigating Team was authorised to exercise powers under Section 5A(2) of the Act and all other powers that may be available under the Act or any other law.

            Proceedings were thereafter held both at Bhubaneshwar and at New Delhi and statements of witnesses recorded. 52 witnesses were examined.  Documents were brought on record, which included reports of various agencies, the case diaries of the local police, Crime Branch and the CBI, which were investigating the case.  The Commission also visited the scene of crime at Manoharpur.

            Production warrants for the appearance of Chenchu Hansda @ Sudarsan Hansda, who was stated to be one of the accused and had been arrested by the C.B.I. in connection with this very case, were issued.  He appeared before the Commission but declined to make any statement.

            A notice. under Section 8B of Commissions of Inquiry Act, 1952 was issued to Rabindra Kumar Pal @ Dara Singh (in these proceedings he will be referred to by the name Dara Singh).  He, however, failed to respond.

            While the Commission was still holding its proceedings, it was brought to its notice that Mr. Prakash Mishra, DIG (Crimes) and Mr. A.K. Ray, S.P., Keonjhar had been transferred.  The Commission, therefore, called upon the State Government to explain the circumstances of the transfer of these officers.  Along with these two officers various other police officers had also been transferred.  In this connection the statement of the Home Secretary, State of Orissa and a further statement of the Director General of Police, were also recorded.

            The Investigating Team submitted its report.  Counsel for the Central Government, the State of Orissa and the Commission made their submissions.

            This heinous crime took place on the night of 22nd /23rd January, 1999 opposite to a church in Kacha Sahi of village Manoharpur in District Keonjhar in the State of Orissa.  Manoharpur village is bordering Mayurbhanj District.  It is under Anandpur Police Station.  The nearest Police Station, however, is at Thakurmunda in Mayurbhanj District.  There are six maps including site plans giving the location of the scene of occurrence at village Manoharpur and maps of the districts of Keonjhar and Mayurbhanj.

            Before I discuss the various issues involved in the proceedings and arrive at my findings, I would like to record a note of caution.

            The Commission, in fact, has been asked to do the job of the police.  Persons accused of conspiracy to commit the heinous crime are yet to be tried in a court of law as per the procedure prescribed.  The accused did not appear before the Commission and did not cross-examine the witnesses.  The Commission has taken into consideration evidence, all of which is not legal evidence in a criminal trial.  Since the strict rules of procedure and evidence under the Code of Criminal Procedure, 1973 (Cr.P.C.) and the Evidence Act, 1872 were not applicable to the proceedings of the Commission, it took into account testimonies of witnesses untested by cross-examination, affidavits, case diaries and even press reports.  Thus the findings arrived at by the Commission and the record examined by it for the purpose would not be relevant in a criminal trial and cannot be used as such.  Otherwise great prejudice would be caused to the accused in their trial.

            Section 6 of the Commissions of Inquiry Act, 1952 does provide that 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 proceedings except a prosecution for giving false evidence by such statement.  This provision only protects the witness.

            Attention is also invited to Section 172 of the Cr.P.C., which reads as under: -
 
 

"172.  Diary of Proceeding in investigation. -

(1)  Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

(2)  Any criminal court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

(3)  Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purposes of contradicting such police officer, the provisions of Sec. 161 or Sec. 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872) shall apply."

Proceedings before a criminal court have, therefore, to be independent of the proceedings before the Commission.
 


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