REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1406 OF 2012
Kishore Samrite ... Appellant
Versus
State of U.P. & Ors. ... Respondents
J U D G M E N T
Swatanter Kumar, J.
1. Challenge in the present appeal is to the order dated 7th March, 2011
passed by a Division Bench of the High Court of Judicature at Allahabad
(Lucknow Bench). The operative part of the order reads as under :
“In view of all the aforesaid and particularly for the reasons
that the writ petition No.111 (H/C) of 2011 was filed on the
instructions of Kishor Samrite (who has also sworn the affidavit
in support of the writ petition) which contained wild
allegations/insinuation against Shri Rahul Gandhi and questions
the virtue and modesty of a young girl of 22 years Km. Kirti
Singh, we dismiss this writ petition with a cost of
Rs.50,00,000/- (Fifty lacs). Out of the cost amount,
Rs.25,00,000/- (Twenty five lacs) shall be paid to Km. Kirti
Singh and Rs.20,00,000/- (Twenty lacs) to Shri Rahul Gandhi,
opposite part no.6. The cost amount shall be deposited within a
period of one month with the Registrar of this Court, failing
which the Registrar shall take necessary action for recovery of
the amount as land revenue.
We also record our special note of appreciation for Shri
Karamveer Singh, Director General of police, U.P. (a highly
decorated police officer), for producing the alleged detenues
within the time frame as directed in the order. Thus, for all
the promptness and sincerity shown, in themidst of serious law
and order problems all over the State on account of some
agitation in obeying and complying with the directions, we
direct payment of Rs.5,00,000/- (five lacs) towards a reward to
the DGP. We also record our appreciation for Shri Jyotindra
Misra, learned Advocate General and the State Government for
showing concern in this matter.
We also direct the Director, Central Bureau of
Investigation, to register case against Kishor Samrite, the
websites referred to in Writ Petition No.111 (H/C) of 2011 and
all other persons who are found involved in the plot, if any,
hatched in order to frame up Shri Rahul Gandhi, Member of
Parliament from Amethi. We also appreciate Shri Gajendra Pal
singh, author of Writ Petition No.125(H/C) of 2011 for
approaching this Court in order to save the reputation of Shri
Rahul Gandhi and the family of alleged detenues at the hands of
vested interests responsible for filing Writ Petition No.111
(H/C) of 2011.
Till the investigation continues and the websites in
question are not cleared by the CBI, their display in India
shall remain banned. The Director, CBI, shall ensure compliance
of this order forthwith. He shall also prepare a list of such
other websites which are involved in display of scandalous
informations about the functionaries holding high public offices
and submit a report in respect thereof on the next date of
hearing.
Thus, writ petition No.125 (H/C) of 2011 is partly
disposed of to the extent insofar as it relates to production of
the alleged detenues. However, it shall remain pending in
respect of notice issued to the Registrar General Allahabad High
Court and for the submission of report by the CBI as directed
hereinabove. The matter shall remain part heard.
List the matter on 11.04.2011 for further hearing.
The Registrar of this Court shall issue copy of this order
to all the concerned parties including the Director, Central
Bureau of Investigation, for immediate compliance.”
2. Challenge to the above impugned order, inter alia, but primarily is
on the following grounds :
(i) The Court could not have called for the records of Writ Petition
No.111 of 2011. Consequently it lacked inherent jurisdiction to deal
with and decide the said writ petition. Furthermore, no order was
passed by the competent authority, i.e., the Chief Justice of the High
Court transferring that writ petition to the Bench dealing with Writ
Petition No.125 of 2011.
(ii) The Bench showed undue haste and has not dealt with Writ Petition
No.125 of 2011 in accordance with the prescribed procedure.
(iii) The order was passed without notice and grant of appropriate hearing
to the present appellant.
(iv) The orders for imposition of cost and registration of a case against
the appellant by the CBI are uncalled for and in any case are unjust
and disproportionate as per the known canons of law.
3. Stands on merits is that Writ Petition No.125 of 2011 was, in fact
and in law, not a petition for habeas corpus and, thus, could not have been
entertained and dealt with by a Division Bench of that Court. The said
petition primarily related to transfer of a petition though in the garb of
a prayer for production of the corpus. It did not satisfy the pre-
requisites of a petition of habeas corpus.
4. Writ Petition No.111 of 2011, even if not complete in its form, was
maintainable and the same could not have been dismissed by the Court as the
prayer by the appellant in that writ petition for habeas corpus was
maintainable in view of the right to life and liberty of the petitioners
stated therein, as enshrined in Article 21 of the Constitution of India,
was violated. The petition had been filed by the appellant as next friend
and had not seen the alleged detenues since 4th January, 2007 when they
were last seen in Amethi. According to the appellant the representations
made to various authorities had failed to yield any results. Thus, that
petition was not liable to be dismissed.
5. To the contra, it is contended on behalf of the State of Uttar
Pradesh that :
(i) The Writ Petition No.111 of 2011 was an abuse of the process of
Court. The appellant had not approached the Court with clean hands
as the facts as were pleaded by him were not correct to the knowledge
of the appellant.
(ii) The petition was mala fide and even the affidavit of the appellant
was not in conformity with the prescribed procedure.
(iii) The averments made in the affidavit and in the other documents were
contradictory in terms.
(iv) The appellant was neither the next friend of the stated petitioners
(in Writ Petition No.111 of 2011) nor was he competent to institute
such a petition. Moreover, the petition itself did not satisfy the
basic ingredients of a petition for habeas corpus.
(v) In view of the dismissal of the Writ Petition No.3719 of 2009 by the
same High Court and its non-mentioning by the petitioner in Writ
Petition No.111 of 2011, besides being suppression of material facts
was hit by the principles of res judicata.
(vi) Writ Petition No.111 of 2011 had been rightly transferred by the
Division Bench and its dismissal and imposition of costs was in
proper exercise of jurisdiction.
(vii) Lastly, it is contended that the next friend had given fictitious
addresses of the petitioners which are different than the ones given
in the present appeal.
6. On behalf of Respondent No.6, Shri Rahul Gandhi, it was contended
that Writ Petition No.111 of 2011 is an abuse of the process of Court and,
in fact, is a motivated petition primarily based on ‘political
mudslinging’. While supporting the stand of Respondent No. 1, the State of
Uttar Pradesh, it is also contended that the appellant, Shri Kishore
Samrite, was a total stranger, had no knowledge of the facts and,
therefore, had no right to file the petition as next friend. It was not a
case of private detention and the petition filed by the appellant was not
in conformity with the rules. The petition was primarily aimed at hurting
the reputation and image of respondent No.6 out of ulterior motives and
political vendetta.
7. According to Respondent No. 7, the Central Bureau of Investigation
(for short “CBI”), it had investigated the matter and found that it was not
a case of detention and, therefore, petition for habeas corpus was not
maintainable. It had, in furtherance to the order of the Court, registered
a case on 11th March, 2011 being RC No.219-2011-(E)2002 under Sections
120B, 181, 191, 211, 469, 499 and 500 of the Indian Penal Code, 1860 (IPC).
The CBI could not complete the investigation because of the order of stay
passed by this Court on 6th April, 2011. From the limited investigation
which was conducted during that period and from the statement of Shri
Balram Singh and other witnesses, it came to light that nothing had
happened on 3rd December, 2006 as alleged by the appellant. In fact, the
persons and the addresses given in the petition were found to be fictitious
and non-existent. Shri Balram Singh had not supported the version advanced
by the appellant. On the contrary, he had belied the entire version and
categorically denied the allegations and informed that the name of his wife
and daughter were incorrectly mentioned as Smt. Sushila and Sukanya Devi.
In regard to the website, CBI stated that the three suspected websites were
posted outside the geographical limits of our country and the originating
IP address could not be traced and further investigation had to be stopped.
It was specifically contended on behalf of the CBI that the appellant had
made no enquiry, had no personal knowledge and that the litigation had been
funded from sources other than appellant’s own sources.
8. Lastly, Respondent No.8 in this appeal, Shri Gajendra Pal Singh, who
was the petitioner in Writ Petition No.125 of 2011, has stated that he had
filed that petition bona fidely while Writ Petition No.111 of 2011 was
based upon a false affidavit, public justice system has been abused by the
petitioner in that case and he has committed perjury. According to
Respondent No.8, Writ Petition No.125 of 2011 was necessitated and he had
the right to file the habeas corpus petition as next friend of the
petitioners stated therein.
9. As is evident from the varied stand taken by the respective parties,
they are not ad idem in regard to the factual matrix of the case. The
facts as they emerge from the record before this Court can usefully be
noticed as follows: -
10. The appellant, Shri Kishore Samrite, an ex-member of legislative
assembly of Madhya Pradesh, elected on the ticket of Samajwadi Party from
the legislative constituency of Tehsil Langi in District Balaghat, Madhya
Pradesh, instituted a Writ Petition in the High Court of Judicature at
Allahabad being Writ Petition No. 111/2011 acting as next friend of one
Sukanya Devi, Balram Singh and Sumrita Devi. Address of all these three
persons was given as 23-12, Medical Chowk, Sanjay Gandhi Marg, Chhatrapati
Shahu Ji Mahraj Nagar, Uttar Pradesh. According to the appellant, these
three persons were kept in illegal detention by the respondent no.6 and
were incapacitated to file the writ petition. It was averred in the
petition filed by him before the High Court that he came to know from
certain websites viz., www.indybay.org, www.arizona.indymedia.org and
www.intellibriefs.blogspot.com, which contained news items stating that on
the night of 3rd December, 2006, while on a tour of his parliamentary
constituency in Amethi, respondent no.6, along with six of his friends (two
from Italy and four from Britain) committed rape on Sukanya Devi, daughter
of Balram Singh. The appellant placed the said news reports on record
along with the writ petition.
11. The writ petition also contained the averment that Balram Singh is a
congress worker in Amethi constituency and Sukanya Devi along with Sumitra
Devi wanted to report the said incident but the concerned authorities did
not lodge the complaint. They approached various other authorities but to
no avail. The appellant specifically averred that he had not seen all the
three persons in public for a long time, particularly since 4th January,
2007, when they were last seen in Amethi. He claims to have visited Amethi
to verify these facts and also a couple of times thereafter. Lastly, on
12th December, 2010, he visited the place where all the three persons
lived, but found the same locked. The incident was reported to various
authorities, including the Chief Minister, the Home Minister, Chief
Secretary of the State, Governor and the other authorities of the State.
The only communication he received was from the office of the Governor
wherein it was said that his application had been sent to the State
Government for proper action. Invoking the right to life and liberty as
enshrined under Article 21 of the Constitution of India on behalf of the
three named petitioners in the writ petition and alleging that respondent
No.6 would influence any fruitful investigation, the appellant prayed for
issuance of a writ of habeas corpus commanding the opposite party
particularly respondent No.6 to produce the petitioners before the Court
and for passing any other appropriate order or direction.
12. Before we refer to the events subsequent to the filing of the Writ
Petition no.111/2011, it must be noticed that a person named Ram Prakash
Shukla, a practising advocate at Lucknow, who claimed himself to be a human
rights activist and a public spirited person had earlier instituted a writ
petition on the same facts being Writ Petition No. 3719/2009 tilted as Ram
Prakash Shukla v. Union of India and Ors. He also stated that he had got
information from the internet website about the rape of Ms. Sukanya Devi in
the evening of 3rd December, 2006 and no action was being taken on the
basis of the said report. He further stated that congress men had
threatened to kill both, Smt. Sumitra Devi and Sukanya Devi, if they raised
the issue. According to him they had stayed at Delhi for over a fortnight
to meet the authorities which they ultimately could not. It was stated
that they are missing since then and were not traceable. On the basis of
the news report, though an offence under Section 376 of the IPC was made
out, yet no FIR was being registered by the authorities. In that writ
petition, Ram Prakash Shukla had made the following prayers: -
“(i) Issue a writ, order or direction in the nature of Mandamus
commanding the opposite parties nos. 1 to 4 to ensure the
lodging of the F.I.R. and to refer it for investigation to
independent agency like S.I.T or C.B.I.
(ii) Issue a writ, order or direction in the nature of Habeas
Corpus commanding the respondents nos. 1 to 4 to search and
produce the Ms. Sukanya Devi, her mother Smt. Sumitra Devi, her
father Balram Singh as well as Videographer Mr. Drupadh and the
CNN-IBN Cameramen before this Hon’ble Court.
(iii) Issue a writ, order or direction in the nature of
Mandamus directing the respondents nos. 5 & 6 (the Human Right
Commission) and the National Commission for Women) to submit the
report of the investigation if any, done by them on the
complaint lodged by Ms. Sukanya Devi.
(iv) Issue any other order or directions which this Hon’ble
Court may deem fit and proper under the facts and circumstances
of the case in favour of the petitioner in the interest of
justice.
(v) Allow the cost of the writ petition in favour of the
petitioner.”
13. This writ petition was heard by a Division Bench of the Allahabad
High Court at Lucknow and was dismissed by a detailed judgement dated April
17th, 2009. The Court specifically noticed that before passing a direction
for lodging of an FIR, the Court is required to see that the pleadings are
absolutely clear, specific and precise and that they make out a charge or
criminal offence,, which prima facie is supported by cogent and reliable
evidence and that the State machinery has failed to take appropriate action
in accordance with law for no valid reason. In absence thereof, the Court
cannot issue such a direction. The Court recorded its complete
dissatisfaction about the correctness of the allegations made in the writ
petition as they were not supported by any reliable or cogent evidence.
The Court, while declining to grant the reliefs prayed for, dismissed the
writ petition. The operative part of the judgment reads as under :
“So far the petitioner’s plea that the respondents may be
required to inform the court, whether any such incident had
taken place or not, suffice would be to mention that in the
absence of clear and precise pleadings with no supporting
evidence, the Court will not make any roving and fishing
enquiry.
The writ petition does not make any case for grant of the
reliefs claimed.
The writ Petition has not force, which is being
dismissed.”
14. It may be noticed that Writ Petition No. 3719 of 2009 itself was
instituted in the year 2009 nearly three years after the alleged news and
was dismissed vide order dated 17th April, 2009. It was in the beginning
of the year 2011 that the present appellant instituted Writ Petition No.111
of 2011 in the Allahabad High Court. The latter writ petition was filed by
the appellant herein as next friend of the three petitioners, namely,
Sukanya Devi, Balram Singh and Sumitra Devi, all residents of 23/12,
Medical Chowk, Sanjay Gandhi Marg, Chhatrapati Shahu Ji Maharaj Nagar,
Uttar Pradesh relying upon the website news relating to the alleged
occurrence of 2006 and making the same allegations, including illegal
detention of the petitioners by respondent No.6, and praying as follows :
“WHEREFOR, it is most humbly prayed that this Hon’ble Court may
be pleased to
1. Issue a writ of or writ, order or direction in the nature
of habeas corpus commanding the opposite parties,
particularly opposite party No.6, to produce the petitioners
before this Hon’ble Court and set them at liberty.
2. Issue any other order or direction which it deems fit and
proper in the present circumstances, in favour of the
petitioners, in the interest of justice.
3. Award the cost of Petition to the petitioners.”
15. This Writ petition was listed before a Single Judge of the Allahabad
High Court who, vide order dated 1st March, 2011 directed issuance of
notice to respondent No.6 to submit his reply. The matter was to be listed
before the Court after service of notice. During the pendency of this writ
petition, respondent No. 8, Shri Gajendra Pal Singh, again acting as next
friend of Sukanya Devi, Shri Balram Singh and Smt. Sumitra Devi @ Mohini
Devi, all residents of Ward No.5, near Gurudwara, Town Area Amethi
District, Chhatrapati Shahu Ji Maharaj Nagar, Uttar Pradesh filed Writ
Petition No.125 of 2011 on 4th March, 2011 stating that a false writ
petition No.111 of 2011 was filed by Shri Kishore Samrite as next friend
and that it was politically motivated to harm the reputation of the
opposite party. Further that Shri Kishore Samrite was neither the next
friend of the petitioners in that petition nor had any interest in the
liberty of those petitioners. Respondent No. 8, Shri Gajendra Pal Singh
claimed to be a neighbour of Shri Balram Singh, father of Sukanya and
husband of Smt. Sumitra @ Mohini Devi. According to him, when the three
petitioners in Writ Petition No.125 of 2011 were not seen in their house
for some time, he approached the Police Station, Amethi, to lodge a
complaint but the police authorities refused to file/register the complaint
on the ground that the petitioners were in custody of police as they had
committed some wrong. Seeing that right to life and liberty of the
petitioners was involved, he prayed for the following refliefs :
“Wherefor it is most respectfully prayed that this Hon’ble
Court may kindly be pleased to :
a. Issue a writ or writ order or direction in the nature of
habeas corpus commanding the opposite parties to produce the
petitioner before this Hon’ble Court and set them at
Liberty.
b. To call the record of Writ Petition No.111 H.C. of 2011
and connect with this present Writ Petition. The order
passed in Writ Petition. The order passed in Writ Petition
No.111 H.C. of 2011 be reviewed and recalled.
c. To order the investigation by the appropriate agency.
d. Issue any other order or direction which is deemed fit and
proper in the present circumstances in favour of the
petitioners, in the interest of justice.
e. Award the cost of the petition to the petitioner.
16. This petition was taken up by a Division Bench of the Allahabad High
Court and the Court passed the following order on 4th March, 2011 :
“In view of all the aforesaid, we direct that the records of
Writ Petition No.111 (H/C) of 2011, said to be pending before a
learned Single Judge, shall be connected with this writ
petition. Besides, we also direct that the Director General of
Police, U.P., shall produce the petitioners, in particular,
Sukanya Devi, on the next date of hearing i.e. 7.3.2011.
However, we make it clear that this direction to the Director
General of Police, U.P., shall not be construed to mean that the
detenu is in illegal custody of State authorities and the
Director General of Police, U.P., in this case shall function
only as an officer of the Court for the purpose of production of
detenu.”
17. The Court directed transfer of Writ Petition No.111 of 2011 and
directed tagging of the same with Writ Petition No.125 of 2011, besides
issuing notice to the Director General of Police, U.P. to produce the
petitioners on 7th March, 2011. In Writ Petition No.125 of 2011, the
Director General of Police filed a personal affidavit. According to him,
the Superintendent of Police, Chhatrapati Shahu Ji Maharaj Nagar, while
noticing the allegations made in both the writ petitions reported that the
address mentioned in Writ Petition No.111 of 2011 was wrong and there was
no such place in the town of Amethi with the name of Medical Chowk, Sanjay
Gandhi Marg and the address mentioned in Writ Petition no.125 of 2011 was
the correct address of Shri Balram Singh who lived there in the past. On
3rd December, 2007, Balram Singh had sold the plot, which was in the name
of his wife, Smt. Sushila Singh, to one Smt. Rekha and, thereafter he
himself shifted to village Hardoia, Police Station Kumar Ganj, District
Faizabad. Even the house adjacent to the plot was sold off by Balram Singh
to Dr. Vikas Shukla who was residing at the said village with his entire
family. It was stated that Balram Singh was living in Village Hardoia with
his wife and four children, three daughters and one son. Name of their
eldest daughter is Kumari Kirti Singh, aged about 21 years. She had passed
her B.Sc. examination in the year 2009-2010. Balram Singh had stated to
the police that he knew Gajendra Pal Singh but did not know Kishore
Samrite. According to this affidavit, Balram Singh also informed the
police that in the year 2006 some men claiming to be media persons had come
to his house in Amethi and asked his wife after showing photograph of
Sukanya Devi, if she was her daughter. Upon this, his wife produced their
daughter before them and told them that the girl in the photograph was
different than their daughter. Further, Balram Singh also stated to the
police that they had never authorised any advocate or anybody else to
institute any writ petition in the court. In this very affidavit, in
regard to the incident of 3rd December, 2006, the DGP has referred to the
following statement of Balram Singh :
“It has also been stated by Sri Balram Singh that neither he nor
his wife Sushila Singh nor daughter Kirti Singh has ever made
any allegation either on 03.12.2006 or before or after that
against Shri Rahul Gandhi or anybody else; nor any writ petition
has been preferred in the Hon’ble High Court making any kind of
allegations. He has never authorised any Advocate or anybody
else to institute any writ petition.”
18. The Ration Card and Pan Card of Balram Singh was produced during
investigation. It is also noticed that Sukanya and Kirti, the name
mentioned in Writ Petition No.125 of 2011 partially matches the particulars
of daughter of Balram Singh and they have no relation whatsoever to any of
the next friend in either of the writ petition. Shri Balram Singh, Kumari
Kirti Singh and Smt. Sushila Singh, all three were produced by the Director
General of Police in Court.
19. When the Writ Petition No.125 of 2011 came up for hearing before the
Court on 7th March, 2011, the Division Bench passed the detailed order
impugned in the present appeal. Vide this order, Writ Petition No.111 of
2011 was disposed of while Writ Petition No.125 of 2011 was partly disposed
of and, as afore-noticed, Director of CBI was directed to register a case
against Shri Kishore Samrite and all other persons involved in the plot.
The Court also imposed cost of Rs.50,00,000/- which was to be distributed
as per the order. The contention raised was that the counsel appearing for
the petitioner in Writ Petition No.111 of 2011 was not given the
opportunity of hearing by the Bench before passing the impugned order and,
in fact, the counsel was standing in the Court when the order was being
dictated.
20. At this stage, we may also notice that according to the appellant, he
was not aware of Writ Petition No.3719 of 2009 having been filed or the
orders passed by the Bench thereupon. The appellant has also stated that
there was no urgency for taking up the matter on that very day and, in any
case, Writ Petition No.111/11 could not have been transferred by that
Bench. The appellant in the present appeal has even gone to the extent of
saying that the girl Kumari Kirti Singh has been implanted in place of
Sukanya Devi and even the name of the mother has been wrongly described.
No notice is stated to have been given to the petitioner in Writ Petition
No.111 of 2011. It is contended that the Writ Petition No.111 of 11 had
been filed in consonance with the proviso to Rule 1(2) of Chapter XXI of
the Allahabad High Court Rules, 1952 under which habeas corpus against a
private person was maintainable and could be listed before a Single Judge.
Allegations have been made in Writ Petition No.125 of 11 calling the
present appellant, petitioner in Writ Petition No.111 of 2011, as mentally
challenged. The Division Bench dealing with Writ Petition No. 125 of 2011
could not have dealt with Writ Petition No.111 of 2011 and could not have
exercised its appellate jurisdiction. The cost imposed upon the appellant
is exorbitant and without any basis.
21. In the background of the above factual matrix and the stand taken by
the respective parties, we shall now proceed to examine the contentions
raised before the Court by the learned counsel appearing for the parties.
For this purpose, we would deal with various aspects of the case under
different heads.
1) Whether there was violation of Principles of Natural Justice and
whether transfer of Writ Petition No. 111/2011 was in accordance with
law ?
22. It is contended that the impugned order dated 7th March, 2011 has
been passed in violation of the principles of natural justice. No adequate
opportunity was granted to the present appellant to put forward his case.
The Writ Petition No. 111/2011 had been transferred to the Division Bench
without even issuing notice to the appellant. The order dated 4th March,
2011 had not directed issuance of notice. It is only vide order dated 7th
March, 2011 that the Registrar of the High Court was directed to issue copy
of the order to all the concerned parties for immediate compliance.
Absence of notice and non-grant of adequate hearing has caused serious
prejudice to the appellant and the order is liable to be set aside on this
sole ground. It is also contended that the appellant’s counsel was present
only when the order was being dictated and had no notice of the hearing.
On the contrary, the contention on behalf of Respondent No. 1, State of
Uttar Pradesh, and other parties is that the counsel for the appellant was
present and had due notice of hearing of the Writ Petitions No. 125/2011
and 111/2011 and as such there was neither any violation of the principles
of natural justice nor has any prejudice been caused to the appellant.
23. Compliance with the principle of audi alteram partem and other allied
principles of natural justice is the basic requirement of rule of law. In
fact, it is the essence of judicial and quasi-judicial functioning, and
particularly the Courts would not finally dispose of a matter without
granting notice and adequate hearing to the parties to the lis. From the
record, i.e. in the orders dated 4th March, 2011 as well as 7th March, 2011
it has not been specifically recorded nor is it implicitly clear that a
notice was directed to the petitioners in Writ Petition No.111/2011 and
they were given opportunity to address the Court. Lack of clarity in this
behalf does raise a doubt in the mind of the Court that the appellant did
not get a fair opportunity to put forward his case before the Division
Bench. The fact that we have issued notice to all the concerned parties in
both the Writ Petitions bearing nos.125/2011 and 111/2011, have heard them
at great length and propose to deal with and dispose of both these writ
petitions in accordance with law, renders it unnecessary for this Court to
examine this aspect of the matter in any further detail. Suffice it to
note that we have heard the counsel appearing for the parties on all
aspects including maintainability, jurisdiction as well as merits of both
the petitions, which issues we shall shortly proceed to deal with
hereinafter. Thus, this submission of the appellant need not detain us any
further.
24. From the above narrated facts it is clear that a petition for habeas
corpus (Writ Petition No. 111/2011) had been filed by the present appellant
while referring to the news on the website in relation to the incident
dated 3rd December, 2006 (in paragraphs 3 and 4) to the effect that since
the petitioners, because of their illegal detention by private opposite
party no.6 are incapacitated to file the instant writ petition and also
that those petitioners were in illegal detention of the private opposite
party no.6 and they have not been seen since 4th January, 2007. This writ
petition was treated as private habeas corpus and was listed before a
Single Judge of the Allahabad High Court. Rule 1 of Chapter XXI of the
Allahabad High Court Rules provided that an application under Article 226
of the Constitution for a writ in the nature of habeas corpus, except
against private custody, if not sent by post or telegram, shall be made to
the Division Bench appointed to receive applications or on any day on which
no such Bench is sitting, to the Judge appointed to receive applications in
civil matters. In the latter case, the Judge shall direct that the
application be laid before a Division Bench for orders. In terms of
proviso to this Rule, it is provided that an application under Article 226
of the Constitution in the nature of habeas corpus directed against private
custody shall be made to the Single Judge appointed by the Chief Justice to
receive such an application. The clear analysis of the above Rule shows
that habeas corpus against a private custody has to be placed before a
Single Judge while in the case of custody other than private custody, the
matter has to be placed before a Division Bench. It appears that on the
strength of this Rule, Writ Petition No. 111/2011 was listed before the
Single Judge of Allahabad High Court. The roster and placing of cases
before different Benches of the High Court is unquestionably the
prerogative of the Chief Justice of that Court. In the High Courts, which
have Principal and other Benches, there is a practice and as per rules, if
framed, that the senior-most Judge at the Benches, other than the Principal
Bench, is normally permitted to exercise powers of the Chief Justice, as
may be delegated to the senior most Judge. In absence of the Chief
Justice, the senior most Judge would pass directions in regard to the
roster of Judges and listing of cases. Primarily, it is the exclusive
prerogative of the Chief Justice and does not admit any ambiguity or doubt
in this regard. Usefully we can refer to some judgments of this Court
where such position has been clearly stated by this Court. In the case
of State of Rajasthan v. Prakash Chand & Ors., (1998) 1 SCC 1, a three-
Judge Bench of this Court was dealing with the requirement of constitution
of Benches, issuance of daily cause list and the powers of the Chief
Justice in terms of the Rajasthan High Court Ordinance, 1949 read with
Article 225 of the Constitution of India. The Court held as under: -
“10. A careful reading of the aforesaid provisions of the
Ordinance and Rule 54 (supra) shows that the administrative
control of the High Court vests in the Chief Justice of the High
Court alone and that it is his prerogative to distribute
business of the High Court both judicial and administrative. He
alone, has the right and power to decide how the Benches of the
High Court are to be constituted: which Judge is to sit alone
and which cases he can and is required to hear as also as to
which Judges shall constitute a Division Bench and what work
those Benches shall do. In other words the Judges of the High
Court can sit alone or in Division Benches and do such work only
as may be allotted to them by an order of or in accordance with
the directions of the Chief Justice. That necessarily means that
it is not within the competence or domain of any Single or
Division Bench of the Court to give any direction to the
Registry in that behalf which will run contrary to the
directions of the Chief Justice. Therefore in the scheme of
things judicial discipline demands that in the event a Single
Judge or a Division Bench considers that a particular case
requires to be listed before it for valid reasons, it should
direct the Registry to obtain appropriate orders from the Chief
Justice. The puisne Judges are not expected to entertain any
request from the advocates of the parties for listing of case
which does not strictly fall within the determined roster. In
such cases, it is appropriate to direct the counsel to make a
mention before the Chief Justice and obtain appropriate orders.
This is essential for smooth functioning of the Court. Though,
on the judicial side the Chief Justice is only the “first
amongst the equals”, on the administrative side in the matter of
constitution of Benches and making of roster, he alone is vested
with the necessary powers. That the power to make roster
exclusively vests in the Chief Justice and that a daily cause
list is to be prepared under the directions of the Chief Justice
as is borne out from Rule 73, which reads thus:
“73. Daily Cause List.—The Registrar shall subject to such
directions as the Chief Justice may give from time to time
cause to be prepared for each day on which the Court sits, a
list of cases which may be heard by the different Benches of
the Court. The list shall also state the hour at which and
the room in which each Bench shall sit. Such list shall be
known as the Day's List.”
XXXX XXXX XXXX XXXX
24................The correctness of the order of the Chief
Justice could only be tested in judicial proceedings in a
manner known to law. No Single Judge was competent to find
fault with it.”
25. In view of the above discussion, the Court amongst others, stated the
following conclusions: -
“59. ......(1) That the administrative control of the High Court
vests in the Chief Justice alone. On the judicial side, however,
he is only the first amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone
has the prerogative to constitute benches of the court and
allocate cases to the benches so constituted.
(3) That the puisne Judges can only do that work as is allotted
to them by the Chief Justice or under his directions.
(4) That till any determination made by the Chief Justice lasts,
no Judge who is to sit singly can sit in a Division Bench and no
Division Bench can be split up by the Judges constituting the
bench themselves and one or both the Judges constituting such
bench sit singly and take up any other kind of judicial business
not otherwise assigned to them by or under the directions of the
Chief Justice.”
26. Similarly, in the case of State of Uttar Pradesh & Ors. v. Neeraj
Choubey and Ors. (2010) 10 SCC 320, the Court had directed appearance of
certain persons in the matter of selection to the post of Assistant
Professor and treated the matter as a writ petition in the nature of Public
Interest Litigation. The Court, while passing widespread orders, in
paragraph 10 of the judgment held as under: -
“10. In case an application is filed and the Bench comes to the
conclusion that it involves some issues relating to public
interest, the Bench may not entertain it as a public interest
litigation but the court has its option to convert it into a
public interest litigation and ask the Registry to place it
before a Bench which has jurisdiction to entertain the PIL as
per the Rules, guidelines or by the roster fixed by the Chief
Justice but the Bench cannot convert itself into a PIL and
proceed with the matter itself.”
27. Judicial discipline and propriety are the two significant facets of
administration of justice. Every court is obliged to adhere to these
principles to ensure hierarchical discipline on the one hand and proper
dispensation of justice on the other. Settled canons of law prescribe
adherence to the rule of law with due regard to the prescribed procedures.
Violation thereof may not always result in invalidation of the judicial
action but normally it may cast a shadow of improper exercise of judicial
discretion. Where extraordinary jurisdiction, like the writ jurisdiction,
is very vast in its scope and magnitude, there it imposes a greater
obligation upon the courts to observe due caution while exercising such
powers. This is to ensure that the principles of natural justice are not
violated and there is no occasion of impertinent exercise of judicial
discretion.
28. In the present case there is no dispute to the fact that no order was
passed by the Chief Justice of Allahabad High Court or even the senior-most
Judge, administratively Incharge of the Lucknow Bench, transferring Writ
Petition No. 111/2011 for hearing from a Single Judge before which it was
pending, to the Division Bench of that Court. On basis of the allegations
made in the Writ Petition No. 111/2011, that matter had been listed before
the Single Judge. If this writ petition was improperly instituted before
the Single Judge of the High Court then it was for the Registry of that
Court or any of the contesting parties to that petition, to raise an
objection in that behalf. The objection could relate to the
maintainability and/or jurisdiction on the facts pleaded. If the Writ
Petition No. 125 of 2011 was filed with a prayer for transfer of Writ
Petition No. 111/2011 on the ground stated in the petition, this power fell
within the exclusive domain of the Chief Justice or the Senior Judge
Incharge for that purpose. It does not appear to be apt exercise of
jurisdiction by the Division Bench to suo moto direct transfer of Writ
Petition No. 111/2011 without leave of the Chief Justice of that Court as
such action would ex facie amount to dealing with matters relating to
constitution and roster of Benches. We have already cited various
judgments of this Court where matters relating to the roster and
constitution of the Benches fall within the exclusive domain of the Chief
Justice of the concerned High Courts. Transfer of a petition may not
necessarily result in lack of inherent jurisdiction. It may be an
administrative lapse but normally would not render the Division Bench or
Court of competent jurisdiction as lacking inherent jurisdiction and its
orders being invalid ab initio. Such an order may necessarily not be
vitiated in law, particularly when the parties participate in the
proceedings without any objection and protest. This, however, always will
depend on the facts and circumstances of a given case. In the present
case, suffices it to note that transfer of Writ Petition No. 111/2011 by
the Division Bench to its own Board was an order lacking administrative
judicial propriety and from the record it also appears that adequate
hearing had not been provided to the writ petitioners before dismissal of
the Writ Petition No. 111 of 2011 by the Division Bench.
Abuse of the process of Court :
29. Now, we shall deal with the question whether both or any of the
petitioners in Civil Writ Petition Nos. 111/2011 and 125/2011 are guilty of
suppression of material facts, not approaching the Court with clean hands,
and thereby abusing the process of the Court. Before we dwell upon the
facts and circumstances of the case in hand, let us refer to some case laws
which would help us in dealing with the present situation with greater
precision. The cases of abuse of the process of court and such allied
matters have been arising before the Courts consistently. This Court has
had many occasions where it dealt with the cases of this kind and it has
clearly stated the principles that would govern the obligations of a
litigant while approaching the court for redressal of any grievance and the
consequences of abuse of the process of court. We may recapitulate and
state some of the principles. It is difficult to state such principles
exhaustively and with such accuracy that would uniformly apply to a variety
of cases. These are:
(i) Courts have, over the centuries, frowned upon litigants who, with
intent to deceive and mislead the Courts, initiated proceedings
without full disclosure of facts and came to the courts with
‘unclean hands’. Courts have held that such litigants are neither
entitled to be heard on the merits of the case nor entitled to any
relief.
(ii) The people, who approach the Court for relief on an ex parte
statement, are under a contract with the court that they would state
the whole case fully and fairly to the court and where the litigant
has broken such faith, the discretion of the court cannot be
exercised in favour of such a litigant.
(iii) The obligation to approach the Court with clean hands is an absolute
obligation and has repeatedly been reiterated by this Court.
(iv) Quests for personal gains have become so intense that those
involved in litigation do not hesitate to take shelter of falsehood
and misrepresent and suppress facts in the court proceedings.
Materialism, opportunism and malicious intent have over-shadowed the
old ethos of litigative values for small gains.
(v) A litigant who attempts to pollute the stream of justice or who
touches the pure fountain of justice with tainted hands is not
entitled to any relief, interim or final.
(vi) The Court must ensure that its process is not abused and in
order to prevent abuse of the process the court, it would be
justified even in insisting on furnishing of security and in cases
of serious abuse, the Court would be duty bound to impose heavy
costs.
(vii) Wherever a public interest is invoked, the Court must examine
the petition carefully to ensure that there is genuine public
interest involved. The stream of justice should not be allowed to
be polluted by unscrupulous litigants.
(vii) The Court, especially the Supreme Court, has to maintain
strictest vigilance over the abuse of the process of court and
ordinarily meddlesome bystanders should not be granted “visa”. Many
societal pollutants create new problems of unredressed grievances
and the Court should endure to take cases where the justice of the
lis well-justifies it.
[Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114;
Amar Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of
Uttaranchal v Balwant Singh Chaufal & Ors. (2010) 3 SCC 402].
30. Access jurisprudence requires Courts to deal with the legitimate
litigation whatever be its form but decline to exercise jurisdiction, if
such litigation is an abuse of the process of the Court. In P.S.R.
Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141, the Court held:
“15. The crucial significance of access jurisprudence has been
best expressed by Cappelletti:
“The right of effective access to justice has emerged with
the new social rights. Indeed, it is of paramount
importance among these new rights since, clearly, the
enjoyment of traditional as well as new social rights
presupposes mechanisms for their effective protection.
Such protection, moreover, is best assured be a workable
remedy within the framework of the judicial system.
Effective access to justice can thus be seen as the most
basic requirement the most basic ‘human-right’ of a system
which purports to guarantee legal rights.”
16. We are thus satisfied that the bogey of busybodies
blackmailing adversaries through frivolous invocation of Article
136 is chimerical. Access to justice to every bona fide seeker
is a democratic dimension of remedial jurisprudence even as
public interest litigation, class action, pro bono proceedings,
are. We cannot dwell in the home of processual obsolescence
when our Constitution highlights social justice as a goal. We
hold that there is no merit in the contentions of the writ
petitioner and dismiss the petition.”
31. It has been consistently stated by this Court that the entire journey
of a Judge is to discern the truth from the pleadings, documents and
arguments of the parties, as truth is the basis of the Justice Delivery
System.
32. With the passage of time, it has been realised that people used to
feel proud to tell the truth in the Courts, irrespective of the
consequences but that practice no longer proves true, in all cases. The
Court does not sit simply as an umpire in a contest between two parties and
declare at the end of the combat as to who has won and who has lost but it
has a legal duty of its own, independent of parties, to take active role in
the proceedings and reach at the truth, which is the foundation of
administration of justice. Therefore, the truth should become the ideal to
inspire the courts to pursue. This can be achieved by statutorily
mandating the Courts to become active seekers of truth. To enable the
courts to ward off unjustified interference in their working, those who
indulge in immoral acts like perjury, prevarication and motivated
falsehood, must be appropriately dealt with. The parties must state
forthwith sufficient factual details to the extent that it reduces the
ability to put forward false and exaggerated claims and a litigant must
approach the Court with clean hands. It is the bounden duty of the Court
to ensure that dishonesty and any attempt to surpass the legal process must
be effectively curbed and the Court must ensure that there is no wrongful,
unauthorised or unjust gain to anyone as a result of abuse of the process
of the Court. One way to curb this tendency is to impose realistic or
punitive costs.
33. The party not approaching the Court with clean hands would be liable
to be non-suited and such party, who has also succeeded in polluting the
stream of justice by making patently false statements, cannot claim relief,
especially under Article 136 of the Constitution. While approaching the
court, a litigant must state correct facts and come with clean hands.
Where such statement of facts is based on some information, the source of
such information must also be disclosed. Totally misconceived petition
amounts to abuse of the process of the court and such a litigant is not
required to be dealt with lightly, as a petition containing misleading and
inaccurate statement, if filed, to achieve an ulterior purpose amounts to
abuse of the process of the court. A litigant is bound to make “full and
true disclosure of facts”. (Refer : Tilokchand H.B. Motichand & Ors. v.
Munshi & Anr. [1969 (1) SCC 110]; A. Shanmugam v. Ariya Kshatriya
Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Anr. [(2012) 6
SCC 430]; Chandra Shashi v. Anil Kumar Verma [(1995) SCC 1 421]; Abhyudya
Sanstha v. Union of India & Ors. [(2011) 6 SCC 145]; State of Madhya
Pradesh v. Narmada Bachao Andolan & Anr. [(2011) 7 SCC 639];
Kalyaneshwari v. Union of India & Anr. [(2011) 3 SCC 287)].
34. The person seeking equity must do equity. It is not just the clean
hands, but also clean mind, clean heart and clean objective that are the
equi-fundamentals of judicious litigation. The legal maxim jure naturae
aequum est neminem cum alterius detrimento et injuria fieri locupletiorem,
which means that it is a law of nature that one should not be enriched by
the loss or injury to another, is the percept for Courts. Wide
jurisdiction of the court should not become a source of abuse of the
process of law by the disgruntled litigant. Careful exercise is also
necessary to ensure that the litigation is genuine, not motivated by
extraneous considerations and imposes an obligation upon the litigant to
disclose the true facts and approach the court with clean hands.
35. No litigant can play ‘hide and seek’ with the courts or adopt ‘pick
and choose’. True facts ought to be disclosed as the Court knows law, but
not facts. One, who does not come with candid facts and clean breast
cannot hold a writ of the court with soiled hands. Suppression or
concealment of material facts is impermissible to a litigant or even as a
technique of advocacy. In such cases, the Court is duty bound to discharge
rule nisi and such applicant is required to be dealt with for contempt of
court for abusing the process of the court. {K.D. Sharma v. Steel
Authority of India Ltd. & Ors. [(2008) 12 SCC 481].
36. Another settled canon of administration of justice is that no
litigant should be permitted to misuse the judicial process by filing
frivolous petitions. No litigant has a right to unlimited drought upon the
court time and public money in order to get his affairs settled in the
manner as he wishes. Easy access to justice should not be used as a
licence to file misconceived and frivolous petitions. (Buddhi Kota Subbarao
(Dr.) v. K. Parasaran, (1996) 5 SCC 530).
37. In light of these settled principles, if we examine the facts of the
present case, next friends in both the petitions are guilty of suppressing
material facts, approaching the court with unclean hands, filing petitions
with ulterior motive and finally for abusing the process of the court.
38. In this regard, first of all we may deal with the case of the
appellant, Kishore Samrite:
39. Firstly, he filed Writ Petition No. 111/2011 on vague, uncertain and
incomplete averments. In fact, he withheld the fact that the earlier Writ
Petition No. 3719/2009 had been dismissed by a Division Bench of the
Allahabad High Court as back as on 17th April, 2009, while he instituted
Writ Petition No. 111/2011 in the year 2011. The excuse put forward by the
appellant was that he did not know about the dismissal of that case. This
flimsy excuse is hardly available to the appellant as he claims to be a
public person (ex-MLA), had allegedly verified the facts and incidents
before instituting the petition and made the desired prayers therein. It
is obvious that subject matter of Writ Petition No. 3719/2009 must have
received great publicity before and at the time of the dismissal of the
writ petition.
40. Secondly, without verification of any facts, the appellant made an
irresponsible statement that the petitioners Sukanya Devi, Sh. Balram Singh
and Smt. Sumitra Devi were in the illegal detention of Respondent no.6.
The averments made in the writ petition were supported by an affidavit
filed in the High Court stating that contents of paragraphs 1 and 3 to 15
were true, partly true to knowledge and partly based on record while
paragraphs 2 and 16 were believed to be correct as per legal advice
received. This stood falsified from the fact that the appellant did not
even know the three petitioners, their correct addresses and identity.
41. Thirdly, in the Writ Petition in paragraph 10, it is stated that the
petitioners were last seen on 4th January, 2007 in Amethi and the appellant
had not seen them thereafter. The appellant also claims in the same
paragraph that the facts came to his knowledge when he, in order to
personally verify the facts, visited Amethi a couple of times and also as
late as in December, 2010. From this, the inference is that the petition
was based upon the facts which the petitioner learnt and believed during
these visits. On the contrary, when he filed an affidavit in this Court on
25th July, 2012, in paragraph 6 of the affidavit, he stated as under:
“....The Petitioner has been the Member of Ruling Party in the
State of M.P. and because of his standing in the Society, in
2007 he was called for by the Samajwadi Party Leadership, to
contest Legislative Assembly Election from Constituency Lanji,
Dist. Balaghat, Madhya Pradesh, he won the Bye-election and
remained MLA, during 03.11.2007 to 08.12.2008. True Copy of
the Identity Card is annexed herewith and marked as ANNEXURE P-
8.
That the Petitioner, from a young age since 1986 he has
been involved in Social Activities, in State of Madhya Pradesh
being a Social Activist, he has filed several Writ Petitions
before Various High Courts, raising serious public and Social
issues, and the issues concerning Corruption and Crime in
Politics, and the courts have been pleased to entertain his
writ petitions and grant reliefs in the several such writ
Petitions filed by him. This List of Writ Petitions filed by
the Petitioner is annexed herewith and marked as ANNEXURE P-9.
That taking into account his standing and antecedent
at behest of the leader of his political party the
Petitioner was called to C-1/135, Pandara Park, New Delhi
in 2010 to meet the other Senior Leaders, who were in
Delhi as the Parliament was in Session, where he was
appraised about the facts of the serious incident that
had been reported from a village in U.P. and in view of
the fact that he had taken up several public causes in
the past he was requested to file a Writ Petition in the
nature of a public interest litigation in the High Court
of Judicature at Allahabad Lucknow Bench at Lucknow and
thus the Writ Petition came to be filed. Notice was
issued in the said Writ Petition.”
42. Thus, there is definite contradiction and falsehood in the stand
taken by the petitioner in the writ petition and in the affidavit filed
before this court, as afore-noticed. This clearly indicates the falsehood
in the averments made and the intention of the appellant to misguide the
courts by filing such frivolous petitions. No details, whatsoever, have
been furnished to state as to how he verified the alleged website news of
the incident of 3rd December, 2006 and from whom. Strangely, he did not
even know the petitioners and could not even identify them. The prayer in
the writ petition was for issuance of a direction in the nature of habeas
corpus to respondent no.6 to produce the petitioners. And lastly, the writ
petition is full of irresponsible allegations which, as now appears, were
not true to the knowledge of the petitioner, as he claimed to have acted as
next friend of the petitioners while he was no relation, friend or even a
person known to the petitioners. His acting as the next friend of the
petitioners smacks of malice, ulterior motive and misuse of judicial
process.
43. The alleged website provides that the girl was missing. It was not
reported there that she and her parents were in illegal detention of the
respondent no.6. So by no means, it could not be a case of habeas corpus.
44. Now, we would deal with Writ Petition No.125 of 2011 instituted by
Sh. Gajender Pal Singh, respondent No.8 in this appeal, being next friend
of petitioners Sukanya Devi, Sh. Balram Singh and Sh. Sumitra Devi. The
glaring factors showing abuse of process of Court and attempt to circumvent
the prescribed procedure can be highlighted, inter alia, but primarily from
the following :
a) Sh. Gajender Pal Singh also had no relationship, friendship or
had not even known the three petitioners.
b) In face of the statements made by the three petitioners before
the Police and the CBI, stating that they had never approached,
asked or even expected respondent No.8 to act as next friend, he
had no authority to act as their next friend before the Court and
pray for such relief.
c) In the garb of petition for habeas corpus, he filed a petition
asking for transfer of Writ Petition No.111 of 2011, to which he
was neither a party nor had any interest.
d) Respondent No.8 intentionally did not appear in writ petition
No.111 of 2011 raising the question of jurisdiction or any other
question but circumvented the process of Court by filing Writ
Petition No.125 of 2011 with the prayers including investigation
by an authority against the petitioner in writ petition No.111 of
2011. Respondent No.8, despite being a resident of that very area
and town, Amethi, did not even care to mention about the dismissal
of Writ Petition No.3719 of 2009.
e) In the writ petition, he claimed to be a neighbour of the three
petitioners but did not even know this much that the petitioners
had, quite some time back, shifted to Village Hardoia in district
Faizabad. He also stated in paragrah 5 of the writ petition that
he was neighbour of the petitioners and having not seen them, had
sought to lodge a police report, which the authorities refused to
take on the ground that the petitioners were in custody of the
police as they had committed some wrong. This averment, to the
knowledge of the petitioner, was false inasmuch as the Director
General of Police, U.P. had stated in his affidavit that they were
never detained or called to the police station. In fact, they had
shifted their house to the aforestated Village. Respondent No.8
has, thus, for obvious and with ulterior motive abused the process
of the court and filed a petition based on falsehood, came to the
Court with unclean hands and even attempted to circumvent the
process of law by making motivated and untenable prayers. This
petitioner (respondent No.8) also made irresponsible allegations
stating that Kishore Samrite, petitioner in Writ Petition No.111
of 2011, was a mentally challenged person.
45. From the above specific averments made in the writ petitions, it is
clear that both these petitioners have approached the Court with falsehood,
unclean hands and have misled the courts by showing urgency and exigencies
in relation to an incident of 3rd December, 2006 which, in fact, according
to the three petitioners and the police was false, have thus abused the
process of the court and misused the judicial process. They maliciously
and with ulterior motives encroached upon the valuable time of the Court
and wasted public money. It is a settled canon that no litigant has a
right to unlimited drought upon the court time and public money in order to
get his affairs settled in the manner as he wishes. The privilege of easy
access to justice has been abused by these petitioners by filing frivolous
and misconceived petitions. On the basis of incorrect and incomplete
allegations, they had created urgency for expeditious hearing of the
petitions, which never existed. Even this Court had to spend days to reach
at the truth. Prima facie it is clear that both these petitioners have mis-
stated facts, withheld true facts and even given false and incorrect
affidavits. They well knew that Courts are going to rely upon their
pleadings and affidavits while passing appropriate orders. The Director
General of Police, U.P., was required to file an affidavit and CBI directed
to conduct investigation. Truth being the basis of justice delivery
system, it was important for this Court to reach at the truth, which we
were able to reach at with the able assistance of all the counsel and have
no hesitation in holding that the case of both the petitioners suffered
from falsehood, was misconceived and was a patent misuse of judicial
process. Abuse of the process of the Court and not approaching the Court
with complete facts and clean hands, has compelled this Court to impose
heavy and penal costs on the persons acting as next friends in the writ
petitions before the High Court. This Court cannot permit the judicial
process to become an instrument of oppression or abuse or to subvert
justice by unscrupulous litigants like the petitioners in the present case.
Locus Standi
46. Having discussed the abuse of process of Court and misuse of judicial
process by both the petitioners, the issue of locus standi would obviously
fall within a very narrow compass. The question of locus standi would
normally be a question of fact and law both. The issue could be decided
with reference to the given facts and not in isolation. We have stated the
facts and the stand of the respective parties in some detail. Both, the
appellant and respondent No.8, had filed their respective writ petitions
before the Allahabad High Court as next friends of the three petitioners
whose names have not been stated with complete correctness in both the writ
petitions. There has been complete contradiction in the allegations made
in the two writ petitions by the respective petitioners. According to the
appellant, the three stated petitioners were illegally detained by the
respondent no.6 while according to the respondent no.8 they were detained
by the authorities. These contradictory and untrue allegations are the
very foundation of these writ petitions. It may also be noticed that in
both the writ petitions, baseless allegations in regard to the alleged
incident of 3rd December, 2006, involving the respondent no.6, had also
been raised.
47. Ordinarily, the party aggrieved by any order has the right to seek
relief by questioning the legality, validity or correctness of that order.
There could be cases where a person is not directly affected but has some
personal stake in the outcome of a petition. In such cases, he may move
the Court as a guardian or next friend for and on behalf of the disabled
aggrieved party. Normally, a total stranger would not act as next friend.
In the case of Simranjit Singh Mann v. Union of India [(1992) 4 SCC 653],
this Court held that a total stranger to the trial commenced against the
convicts, cannot be permitted to question the correctness of the conviction
recorded against some convicts unless an aggrieved party is under some
disability recognised by law, othewise it would be unsafe or hazardous to
allow a third party to question the decision against him. In the case of
S.P. Gupta v. Union of India [AIR (1982) SC 149], the Court stated, “but we
must be careful to see that the member of the public, who approaches the
court in cases of this kind, is acting bona fide and not for personal gain
or private profit or political motivation or other oblique consideration.
The court must not allow its process to be abused by politicians and
others.” Dealing with the question of the next friend bringing a petition
under Article 32 of the Constitution, this Court in the case of Karamjeet
Singh v. Union of India [(1992) 4 SCC 666], held as under :
“We are afraid these observations do not permit a mere friend
like the petitioner to initiate the proceedings of the present
nature under Article 32 of the Constitution. The observations
relied upon relate to a minor or an insane or one who is
suffering from any other disability which the law recognises as
sufficient to permit another person, e.g. next friend, to move
the Court on his behalf; for example see : Sections 320(4)(a),
330(2) read with Section 335(1)(b) and 339 of the Code of
Criminal Procedure. Admittedly, it is not the case of the
petitioner that the two convicts are minors or insane persons
but the learned counsel argued that since they were suffering
from an acute obsession such obsession amounts to a legal
disability which permits the next friend to initiate proceedings
under Article 32 of the Constitution. We do not think that such
a contention is tenable. The disability must be one which the
law recognises.”
48. Dealing with public interest litigation and the cases instituted by
strangers or busybodies, this Court in the following cases cautioned the
courts and even required that they be dismissed at the threshold:
I) Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305, at page 347 :
“Sarkaria, J. in Jasbhai Motibhai Desai v. Roshan Kumar
expressed his view that the application of the busybody should
be rejected at the threshold in the following terms:
‘It will be seen that in the context of locus standi to
apply for a writ of certiorari, an applicant may ordinarily
fall in any of these categories: (i) ‘person aggrieved’;
(ii) ‘stranger’; (iii) busybody or meddlesome interloper.
Persons in the last category are easily distinguishable
from those coming under the first two categories. Such
persons interfere in things which do not concern them. They
masquerade as crusaders for justice. They pretend to act in
the name of pro bono publico, though they have no interest
of the public or even of their own to protect. They indulge
in the pastime of meddling with the judicial process either
by force of habit or from improper motives. Often, they are
actuated by a desire to win notoriety or cheap popularity;
while the ulterior intent of some applicants in this
category, may be no more than spoking the wheels of
administration. The High Court should do well to reject the
applications of such busybodies at the threshold’.”
II) R & M Trust v. Koramangala Residents Vigilance Group (2005) 3 SCC 91]
“25. In this connection reference may be made to a recent
decision given by this Court in the case of Dattaraj Nathuji
Thaware v. State of Maharashtra in which Hon'ble Pasayat, J. has
also observed as follows:
‘12. Public interest litigation is a weapon which has to be
used with great care and circumspection and the judiciary
has to be extremely careful to see that behind the
beautiful veil of public interest, an ugly private malice,
vested interest and/or publicity-seeking is not lurking. It
is to be used as an effective weapon in the armoury of law
for delivering social justice to citizens. The attractive
brand name of public interest litigation should not be used
for suspicious products of mischief. It should be aimed at
redressal of genuine public wrong or public injury and not
be publicity-oriented or founded on personal vendetta’.”
49. On the analysis of the above principles, it is clear that a person
who brings a petition even for invocation of a fundamental right must be a
person having some direct or indirect interest in the outcome of the
petition on his behalf or on behalf of some person under a disability
and/or unable to have access to the justice system for patent reasons.
Still, such a person must act bonafidely and without abusing the process of
law. Where a person is a stranger/unknown to the parties and has no
interest in the outcome of the litigation, he can hardly claim locus standi
to file such petition. There could be cases where a public spirited person
bonafidely brings petition in relation to violation of fundamental rights,
particularly in habeas corpus petitions, but even in such cases, the person
should have some demonstrable interest or relationship to the involved
persons, personally or for the benefit of the public at large, in a PIL.
But in all such cases, it is essential that the petitioner must exhibit
bonafides, by truthful and cautious exercise of such right. The Courts
would be expected to examine such requirement at the threshold of the
litigation in order to prevent abuse of the process of court. In the
present case, both the appellant and respondent No.8 are total strangers to
the three mentioned petitioners. Appellant, in fact, is a resident of
Madhya Pradesh, belonging to a political party and was elected in
constituency Tehsil Lanji in District Balaghat at Madhya Pradesh. He has
no roots in Amethi and, in fact, he was a stranger to that place. The
appellant as well as respondent No.8 did not even know that the persons on
whose behalf they have acted as next friend had shifted their residence in
the year 2010 to Hardoia in District Faizabad. They have made false
averments in the petition and have withheld true facts from the Court.
50. This Court, in the case of Charanjit Lal Chowdhury v. The Union of
India & Ors. [AIR 1951 SC 41], while discussing the distinction between the
rights and possibility of invocation of legal remedy of a company and a
shareholder, expressed the view that this follows logically from the rule
of law that a corporation has a distinct legal personality of its own with
rights and capacities, duties and obligations separate from those of its
individual members. As the rights are different and inhere in different
legal entities, it is not competent to one person to seek to enforce the
right of another except where the law permits him to do so. A well known
illustration of such exception is furnished by the procedure that is
sanctioned in an application for a writ of habeas corpus. Not only the man
who is imprisoned or detained in confinement but any person, provided he is
not an absolute stranger, can institute proceedings to obtain a writ of
habeas corpus for the purpose of liberating another from an illegal
imprisonment. It is not a case of a mere third person moving the court
simpliciter on behalf of persons under alleged detention. It is a case of
definite improprietory abuse of process of court, justice and is a
motivated attempt based on falsehood to misguide the Court and primarily
for publicity or political vendetta. More so, when the petitioners in the
writ petitions have categorically stated that they made no complaint of the
alleged incident of 3rd December, 2006 and never authorised, requested or
approached either of the petitioners to move the court for redressal of any
grievance. The question of filing habeas corpus petitions on their behalf
would not arise because they were living at their own house and enjoying
all freedoms. According to them, they were detained by none at any point
of time either by respondent No.6 or the Police authorities. In face of
this definite stand taken by these persons, the question of locus standi
has to be answered against both the petitioners. In fact, it is not only
abuse of the process of the Court but also is a case of access to justice
unauthorisedly and illegally. Their whole modus operandi would be
unacceptable in law. Thus, we have no hesitation in holding on the facts
of the present case that both the petitioners had no locus standi to
approach the High Court of Allahabad in the manner and method in which they
did. It was contended on behalf of the appellant as well as respondent
No.8 that a petition for habeas corpus is not struck by the rule of res
judicata or constructive res judicata. According to them, the decision of
the Writ Petition No.3719 of 2009 was in no way an impediment for
institution of the writ petition as in the case of habeas corpus every day
would be a fresh and a continuing cause of action. For this purpose,
reliance has been placed upon the judgment of this Court in the case of
Ghulam Sarwar v. Union of India [AIR 1967 SC 1335] and Kirti Kumar Chaman
Lal Kundaliya v. Union of India [AIR 1981 SC 1621]. We do not consider it
necessary to decide this question as a question of law in the facts and
circumstances of the present case particularly in view of the findings
recorded by us on other issues. Suffice it to note that the judgment of
the Allahabad High Court dated 17th April, 2009 in Civil Writ Petition 3719
of 2009 had attained finality as the legality or correctness thereof was
not challenged by any person. There can hardly be any doubt that upon
pronouncement of this judgment this case squarely fell in the public domain
and was obviously known to both the petitioners but they did not even
consider it necessary to mention the same in their respective writ
petitions. Another contention that has been raised on behalf of the
appellant is that a petition of habeas corpus lies not only against the
Executive Authority but also against private individual. Reliance is
placed on the case of In Re: Shri Sham Lal [(1978) 2 SCC 479]. As a
proposition of law, there is no dispute raised before us to this
proposition. Thus, there is no occasion for this Court to deliberate on
this issue in any further elaboration.
51. Having dealt with various aspects of this case, now we must revert to
the essence of the present appeal on facts. The petitions instituted by
the appellant and respondent No.8 were certainly an abuse of the process of
Court. They have encroached upon the valuable time of the courts. The
contradictory stands taken before the courts and their entire case being
denied by the petitioners themselves clearly show that they have misused
the judicial process and have stated facts that are untrue to their
knowledge. The alleged incident which, according to the petitioners,
police and the CBI, never happened and illegal detention of the petitioners
has been falsified by the petitioners themselves in the writ petitions. It
is a matter of regret that the process of the court has been abused by
unscrupulous litigants just to attain publicity and adversely affect the
reputation of another politician, respondent No.6. One of the obvious
reasons which can reasonably be inferred from the peculiar facts and
circumstances of the case is the political rivalry. According to the
counsel appearing for respondent No.6, it is a case of political
mudslinging. He has rightly contended that the websites information was
nothing but secondary evidence, as stated by this Court in Samant N.
Balkrishna & Anr. v. V. George Fernandez and Ors. [(1969) 3 SCC 238] but
not even an iota of evidence has been placed on record of the writ
petitions before the High Court or even in the appeal before this Court,
which could even show the remote possibility of happening of the alleged
rape incident on 3rd December, 2006. There is an affidavit by the police
and report by the CBI to show that this incident never occurred and the
three petitioners have specifically disputed and denied any such incident
or making of any report in relation thereto or even in regard to the
alleged illegal detention. Political rivalry can lead to such ill-founded
litigation. In the case of Gosu Jayarami Reddy & Anr. v. State of Andhra
Pradesh [(2011) 11 SCC 766], this Court observed that political rivalry at
times degenerates into personal vendetta where principles and policies take
a back seat and personal ambition and longing for power drive men to commit
the foulest of deeds to avenge defeat and to settle scores. These
observations aptly apply to the facts of the present case particularly the
writ petition preferred by the appellant. At one place, he claims to have
acted as a public figure with good conscience but has stated false facts.
On the other hand, he takes a somersault and claims that he acted on the
directives of the political figures. It is unworthy of a public figure to
act in such a manner and demonstrate a behaviour which is impermissible in
law. Appellant as well as respondent No.8 filed Habeas corpus petitions
claiming it to be a petition for attainment of public confidence and right
to life. In the garb of doctrines like the Right to Liberty and access to
justice, these petitioners not only intended but actually filed improper
and untenable petitions, primarily with the object of attaining publicity
and causing injury to the reputation of others. The term ‘person’ includes
not only the physical body and members but also every bodily sense and
personal attribute among which is the reputation a man has acquired.
Reputation can also be defined to be good name, the credit, honour or
character which is derived from a favourable public opinion or esteem, and
character by report. The right to enjoyment of a good reputation is a
valuable privilege of ancient origin and necessary to human society.
‘Reputation’ is an element of personal security and is protected by
Constitution equally with the right to enjoyment of life, liberty and
property. Although ‘character’ and ‘reputation’ are often used
synonymously, but these terms are distinguishable. ‘Character’ is what a
man is and ‘reputation’ is what he is supposed to be in what people say he
is. ‘Character’ depends on attributes possessed and ‘reputation’ on
attributes which others believe one to possess. The former signifies
reality and the latter merely what is accepted to be reality at present.
{Ref. Smt. Kiran Bedi v. The Committee of Inquiry & Anr. [(1989) 1 SCC 494]
and Nilgiris Bar Association v. T.K. Mahalingam & Anr. [AIR 1998 SC 398]}.
The methodology adopted by the next friends in the writ petitions before
the High Court was opposed to political values and administration of
justice. In the case of Kusum Lata v. Union of India [(2006) 6 SCC 180],
this Court observed that when there is material to show that a petition
styled as a public interest litigation is nothing but a camouflage to
foster personal disputes, the said petition should be dismissed by the
Court. If such petitions are not properly regulated and abuse averted, it
becomes a tool in unscrupulous hands to release vendetta and wreak
vengeance as well.
52. In light of these legal principles, appellant and, in fact, to a
great extent even respondent No.8 have made an attempt to hurt the
reputation and image of respondent no.6 by stating incorrect facts, that
too, by abusing the process of court.
53. Coming to the judgment of the High Court under appeal it has to be
noticed that the appellant was deprived of adequate hearing by the High
Court, but that defect stands cured inasmuch as we have heard of the
concerned parties in both the writ petitions at length. The transfer of
Writ Petition No. 111/2011 was not in consonance with the accepted canons
of judicial administrative propriety. The imposition of such heavy costs
upon the petitioner was not called for in the facts and circumstances of
the case as the Court was not dealing with a suit for damages but with a
petition for habeas corpus, even if the petition was not bona fide.
Furthermore, we are unable to endorse our approval to the manner in which
the costs imposed were ordered to be disbursed to the different parties.
Moreover, the question of paying rewards to the Director General of Police
does not arise as the police and the Director General of Police were only
performing their duties by producing the petitioners in the Court. They,
in any case, were living in their own house without restriction or any kind
of detention by anyone. In fact, the three petitioners have been
compulsorily dragged to the court by the petitioner in Writ Petition No.
125/2011. They had made no complaint to any person and thus, the question
of their illegal detention and consequential release would not arise.
These three persons have been used by both the petitioners and it is, in
fact, they are the ones whose reputation has suffered a serious setback and
were exposed to inconvenience of being dragged to courts for no fault of
their own. We hardly see any attributes of the Police except performance
of their duties in the normal course so as to entitled them to exceptional
rewards. Certainly, the reputation of respondent no.6 has also been
damaged, factually and in law. Both these petitions are based on
falsehood. The reputation of respondent no.6 is damaged and his public
image diminished due to the undesirable acts of the appellant and
respondent no.8.
54. For these reasons, we are unable to sustain the order under appeal in
its entirety and while modifying the judgments under appeal, we pass the
following order: -
1. Writ petition No. 111/2011 was based upon falsehood, was abuse of
the process of court and was driven by malice and political
vendetta. Thus, while dismissing this petition, we impose
exemplary costs of Rs. 5 lacs upon the next friend, costs being
payable to respondent no.6.
2. The next friend in Writ Petition No. 125/2011 had approached the
court with unclean hands, without disclosing complete facts and
misusing the judicial process. In fact, he filed the petition
without any proper authority, in fact and in law. Thus, this
petition is also dismissed with exemplary costs of Rs. 5 lakhs for
abuse of the process of the court and/or for such other offences
that they are found to have committed, which shall be payable to
the three petitioners produced before the High Court, i.e. Ms.
Kirti Singh, Dr. Balram Singh and Ms. Sushila @ Mohini Devi.
3. On the basis of the affidavit filed by the Director General of
Police, U.P., statement of the three petitioners in the Writ
Petition, CBI’s stand before the Court, its report and the
contradictory stand taken by the next friend in Writ Petition
No.111/2011, we, prima facie, are of the view that the allegations
against the respondent no.6 in regard to the alleged incident of
rape on 3rd December, 2006 and the alleged detention of the
petitioners, are without substance and there is not even an iota of
evidence before the Court to validly form an opinion to the
contrary. In fact, as per the petitioners (allegedly detained
persons), they were never detained by any person at any point of
time.
4. The CBI shall continue the investigation in furtherance to the
direction of the High Court against petitioner in Writ Petition No.
111/2011 and all other persons responsible for the abuse of the
process of Court, making false statement in pleadings, filing false
affidavits and committing such other offences as the Investigating
Agency may find during investigation. The CBI shall submit its
report to the court of competent jurisdiction as expeditiously as
possible and not later than six months from the date of passing of
this order.
5. These directions are without prejudice to the rights of the
respective parties to take such legal remedy as may be available to
them in accordance with law. We also make it clear that the Court
of competent jurisdiction or the CBI would not in any way be
influenced by the observations made in this judgment or even the
judgment of the High Court. All the pleas and contentions which
may be raised by the parties are left open.
55. The appeal is disposed of in the above terms.
..…………………………J.
(B.S. Chauhan)
..…………………………J.
(Swatanter Kumar)
New Delhi,
October 18, 2012
ITEM NO.1A COURT NO.12 SECTION II (For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO. 1406 OF 2012
KISHORE SAMRITE Appellant(s)
VERSUS
STATE OF U.P. & ORS. Respondent(s)
Date: 18/10/2012 This Appeal was called on for pronouncement
of Judgment today.
For Petitioner(s) Ms. Kamini Jaiswal,Adv.
For Respondent(s)
Respondent No. 6 Mr. P.P. Rao, Sr. Adv.
Ms. Mahalakshmi Pavani, Adv.
Mr. G. Balaji, Adv.
CBI Mr. Harin P.Raval, ASG
Mr. Rajiv Nanda, Adv.
Mr. P.K. Dey, Adv.
Mr. B.V. Balram Das,Adv.
Mr. Arvind Kumar Sharma ,Adv
State of U.P.
Mr. Rakesh Diwedi,Sr.Adv.
Mr. Gaurav Bhatia,AAG, U.P.
Mr. Gaurav Dhingra,Adv.
Mr. Avnish Pandey,Adv.
Mr. Gautam Talukdar,Adv.
Respondent Nos. 4 & 5
Mr. S.P. Singh, Sr. Adv.
Mr. V.K. Biju, Adv.
Ms. Sadhana Sandhu,Adv.
Ms. Sunita Sharma,Adv.
Mr. B.V. Balramdas, Adv.
Mrs. Anil Katiyar,Adv.
Respondent No.8 Mr. K.T.S. Tulsi,Sr.Adv.
Mr. Subramonium Prasad,Adv.
Mr. Raj Kamal,Adv.
Mr. Kuber Boddh,Adv.
Hon'ble Mr. Justice Swatanter Kumar pronounced the
judgment of the Bench comprising of Hon'ble Dr.Justice B.S. Chauhan
and His Lordship.
The impugned judgment is modified and the appeal is
disposed of in terms of the signed Judgment.
(A.S. BISHT) (INDU BALA KAPUR)
COURT MASTER COURT MASTER
(Signed reportable Judgment is placed on the file)
