TMI Blog2012 (10) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 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. 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na 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 kep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 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 takin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 unscr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghat, 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer 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. ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ching 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... su 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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