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TMI Blog2012 (10) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... ndhi, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obligatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tem. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebsite 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 frie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 impe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... 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