'Jodhpur Temple Tragedy Inquiry Commission' holds: Right to drop witness is Commision's prerogative

An order passed by Former Justice J.R. Chopra (Chairman of the Commission) in the 'Jodhpur Temple Tragedy Inquiry Commission' is the first order which decides the following issue in an inquiry commission:

Whether in an inquiry commission set up by the State Govt., persons who have volunteered to depose as witnesses and have also submitted their affidavits in pursuance of the same from any one of the sides, can later on retract to do so OR whether it is the domain of the Commission solely to decide whether or not the witness is to be examined and the information provided by him in his/ her affidavit will be considered in the inquiry process?

It may be noted that the said commission has been set up to enquire into the reasons and causes for the stampede which took lives of several hundred people at the Mehrangarh Fort in Jodhpur in 2008 and also as to who was responsible for the failed administration at the place of incident. Counsels have been appointed from the side of the victims, the police administration, the Mehrangarh Museum Trust, H.H. Maharaja Umaid Singh Religious Trust and the Commission.

This issue came up when certain key witness were trying to evade deposing before the Commission, which could have prevented important evidence not being analyzed through the Commission.

In a detailed order, Justice Chopra decided the said issue while relying on the provisions of the Commission of Inquiry Act of 1952, Commission of Inquiry (Central) Rules of 1972 and Rajasthan State Commissions of Inquiry (Procedure) Rules of 1969. It was decided that no party can be allowed to drop a witness, once it has agreed to depose as a witness and such discretion is only vested in the Commission.

It is a principle of the law of evidence that the party who calls a particular witness has a right to conduct his/ her examination-in-chief and the opposite party(s) have the right to cross-examine the said witness. In case the party calling the witness wishes to drop a witness & it is allowed by the Commission against the wish of the opposite party, in this situation, the opposite party will have to call the witness as their witness, which will change the nature of the said witness, i.e. he/she will become the opposite party's witness and the said side will lose the right to cross examine him/her. This substantially prejudices the right the opposite side.

The Commission held that such a situation cannot be allowed and none of the parties or their counsels can be allowed to mould the procedure of the Commission.