Allahabad High Court
Sher Baz Khan vs State Of U.P. & Others on 16 July, 2010
AFR
Judgment reserved on 14.05.2010
Judgment delivered on 16.07.2010
Civil Misc. Writ Petition No.54884 of 2009
Sher Baz Khan Vs. State of U.P. & Ors.
Hon. Sunil Ambwani, J.
Hon. K.N. Pandey, J.
We have heard Shri Umesh Narain Sharma, Sr. Advocate assisted by Shri Suneet Kumar, learned counsel for the petitioner. Shri Jyotindra Misra, Advocate General has appeared for the respondents. Shri S.G. Hasnain, AAG has also appeared and made submissions on behalf of the State respondents. Shri S.F.A. Naqvi appears for the respondent No.5 The petitioner is the elected President of Nagar Palika Parishad, Chandpur, Distt. Bijnor. He has filed this writ petition in public interest alleging that Shri Mohd. Iqbal @ Thekedar- respondent No.5, the elected member of the Legislative Assembly of the State of U.P. from Tehsil Chandpur Distt. Bijnor, is a member of the Bahujan Samaj Party, the ruling party in the State. Taking advantage of his position as elected representative, and the absence of the outlying Court at Chandpur, which could not be established on account of resistance made by local people, at his behest, he is running parallel court at the Tehsil. It is alleged in the writ petition that for past 3 years the respondent No.5 holds the Court on every Sunday, deciding civil as well as criminal cases after taking money from the parties. He also deals with cases of serious criminal offences namely murder, dacoity, rape and dowry. He charges Court fees of Rs.500/- and requires compulsory deposit to be made by the parties. The decisions given by him are implemented by force. He acts and conducts himself as a judge and calls the proceedings as Court proceedings. The reports of these unconstitutional activities carried out by him as elected representative of the people of Chandpur has been published in 2 many newspapers including 'Indian Jang' published from New Delhi, and were highlighted by Zee News Channel in its broadcast dated 7.9.2008. A compact disc containing the record of the news item has been annexed to the writ petition.
It is stated in paragraph 12 that a news item was also published in daily newspaper 'Dainik Jagran' on 8.9.2008 showing the photograph in which the respondent No.5 is seen accepting bundles of currency notes in its alleged Lok Adalats. The news item was also published in 'Shah Times' Bijnor on 8.9.2008 carrying similar photographs. Some of the members of the Legislative Council namely Shri Munna Singh Chauhan and Shri Hari Singh Dhillo raised the issue in Vidhan Parishad stating that the law and order situation in the State has deteriorated to such an extent that a MLA of the ruling party, that is respondent no.5 has no respect for the legal system of the State and poses himself as 'Judge' as well as 'Advocate' and is rendering justice by extracting money. The leader of the House Swami Prasad Maurya assured the house that no person whether the Minister or member of the Legislature is above law, and action will be taken after enquiry.
It is alleged that no enquiry was conducted and that the respondent No.5 is still continuing with his activities. In para 16 of the writ petition it is stated that when the then District Judge visited Chandpur for selecting the site for establishing Munsif Court at Chandpur Tehsil, the respondent No.5 along with his hired men misbehaved with the District Judge as well as the staff. An FIR to this effect was registered as Crime Case No.224/2008 on 7.8.2008, against almost 20 persons, some named and some unknown. The name of respondent No.5 was not included in the FIR, on his influence as member of the Legislative Assembly. His brother in law, however, is one of the accused. In paras 21 and 22 it is stated as follows:-
"21. That it is relevant to state that an inquiry was conducted in respect of the aforementioned affairs of respondent No.5. One Shri O.P. Kapoor, Zonal Officer, 3 Special Intelligence Cell, Moradabad and one Shri Nagar an officer of the Intelligence Cell, Bijnor had conducted the enquiry. The statements of Shri Nadeem, Shri Khursheed Ansari as well as the petitioner and several other persons were taken. It appears that the report has already been submitted to the State Government. The respondent No.5 exercises considerable influence not only upon the district administration but also in the State Government with the result till date nothing has been done in the matter on the said report. The fact that the respondent No.5 is still continuing to hold 'court' in his village itself demonstrates that the law and order has totally collapsed at Chandpur and a parallel system is functioning at Sub Division Chandpur and the respondent No.5 is in total control. The rule of law has collapsed and the officials are hand in glove with the respondent No.5
22. That the influence, power and authority of the respondent No.5 can be gathered from the fact that the respondent No.5 interferes in all matters including local bodies which fall in his constituency. There are two Nagarpalika Parishads viz. Haldaur and Chandpur and one Nagar Panchayat, Jhalu which fall within the Chandpur Assembly Constituency of respondent No.5. The respondent No.5 has been instrumental in getting the powers of all elected Presidents of the aforementioned local bodies suspended and for all practical purposes it is the respondent No.5 who is running the administration of the aforementioned local bodies and the Sub Divisional Magistrate is only a silent spectator."
On 22.10.2009 we passed the following order:-
"Shri M.S. Pepersania, learned Standing Counsel has raised objections to the maintainability of this writ petition filed in public interest on the ground, that the petitioner has no locus standi to file the writ petition. It is stated that the petitioner has 14 criminal cases pending against him and that he had appeared as an advocate in the Court without any qualification for registration, for which a first information report was lodged against him. He has also cited a judgment of Supreme Court in Neetu vs. State of Punjab and others (2007) 1 UPLBEC 412 in which the Supreme Court has strongly deprecated the filing of public interest litigation for settling personal score and has reiterated the law that in service matters a public interest litigation should not be entertained.
Shri Umesh Narain Sharma, Senior Advocate assisted by Shri Suneet Kumar has made serious allegations against respondent no. 5-sitting Member of Legislative Assembly of Chandpur, District Bijnor. It is 4 stated relying upon three Compact Discs (CD), annexed to the writ petition as Annexure Nos.1 and 2, parts of which were shown to us on a C.D. player in Court recorded by the 'Zee' News Channel, that respondent no. 4 is running a court's system at Chandpur in which he entertains the complaints and gives decisions to be obeyed by the persons, who approach the Court. It is stated in the writ petition that the respondent no. 5 has unleashed a reign of terror in Chandpur and that a group of persons had also misbehaved with the District Judge on the inspection made by him for selecting the site for establishing the outlying court.
Shri Umesh Narain Sharma states that a question was raised in the State Assembly against respondent no. 5 bringing to the notice of the house his activities. It is stated that the leader of the house evaded the answers and left the matter to be examined by the Commissioner of the Division. Shri Sharma states that such a Commissioner has not examined the matter and that the serious matter, which raises constitutional issues regarding maintenance of law and order and running a parallel court of law, has been sought to be avoided.
The petitioner has raised a serious issue in the writ petition regarding the activities of respondent no. 5 and which, according to him, completely undermines the judicial system in the state.
We call upon the Advocate General of the State to appear day after tomorrow to reply as to why this matter be not referred to the Central Bureau of Investigation and a direction be issued to the State Government to immediately stop the alleged activities.
Put up day after tomorrow. A copy of the order be given to Chief Standing Counsel today."
On 24.10.2009 we requested the Registrar General of the Court to submit a report on the establishment of the outlying Court at Chandpur Distt. Bijnor. The order is quoted as follows:-
"In pursuance to the order dated 22.10.2009 Sri Jyotindra Mishra, learned Advocate General of the State and Sri Satish Chaturvedi, learned Additional Advocate General have appeared in the matter.
Chief Standing Counsel represents respondent Nos. 1 to 4.
Issue notice to respondent No. 5 both by registered post as well as through the Chief Judicial Magistrate, Bijnor.
The Chief Judicial Magistrate will submit the service report within two weeks.5
Sri U.N. Sharma, learned Senior Advocate, has produced a copy of the report by Mandal Adhikshak, Adhi Suchna Vibhag, Moradabad dated 4.3.2009 in support of the averments made in the writ petition. He has reported to the Inspector General of Police Intelligence at Lucknow that Sri Mohd. Iqbal MLA, is holding Courts at Chandpur for about three years every Sunday. He entertains petitions on registration of Rs.500/-, calls parties through notices, gets amounts deposited from the parties and issues judgments. The parties are compelled and forced to obey his decree. Some cases have been cited in which Sri Mohd. Iqbal has got the amount deposited from both the parties. It is also stated in this report that the men of Sri Mohd. Iqbal had attacked the then District Judge and his team visiting Tehsil Chandpur in District Bijnor to select the site to establish abn outlying court. A FIR of incident was registered against about more than 100 persons.
Let this document be brought on record along with an affidavit.
Learned Advocate General seeks two weeks time to look into the allegations and has requested that the matter may not be referred to the CBI, until he finds about the enquiry made by the State Government as it was promised by the Chairman of the Upper House to the House on 9.2.2009.
The Registrar General of the Court will submit a report on the establishment of outlying Court at Chandpur, District Bijnor. He will also place on record the report or the material which the Court may have received from the District Judge for the selection of the site of the Outlying Court and any opposition in the matter of selection of site.
The issues raised by the petitioner, have made out a strong prima facie ground to issue interim orders in the matter. We, therefore, direct that the District Magistrate, the Senior Superintendent of Police and the District Judge, Bijnor, to ensure that no court is held by any private individual including Mohd. Iqbal alias Thekedar, M.L.A., respondent No.5 at Tehsil Chandpur, District Bijnor or at any other place in the district. Sri Mohd. Iqbal is restrained from entertaining petitions, taking evidence, deciding issues and enforcing his decrees on the people.
We also request the District Judge, Bijnor to submit a report within two weeks with regard to the allegations made in the writ petition, and to provide the information which he may have received in the matter. It will be open to him to depute the Chief Judicial Magistrate or a team of Magistrates, to enquire into the allegations before submitting the report.
Put up on 10.11.2009."6
On 4.2.2010 the matter was heard by the Bench presided by the then Chief Justice and following orders were passed:-
"Taking into account the seriousness of the allegation, a Division Bench of this Court, vide order dated 24.10.2009, directed the District Judge, Bijnor to submit a report. In the light of the aforesaid order, the District Judge had constituted a Committee of three Judicial Officers, namely, the Chief Judicial Magistrate, Bijnor, the Additional Chief Judicial Magistrate-I, Bijnor and Additional Chief Judicial Magistrate, Nagina, Bijnor. The Committee so constituted has submitted a report, which is very very disturbing. The said report has been endorsed by the District Judge, Bijnor.
The Committee in its report has stated that respondent no.5-Mohd. Iqbal @ Thekedar, Member of Legislative Assembly is holding a parallel court. This fact is controverted by Mr. S.F.A. Naqvi, appearing on behalf of respondent no.5.
Prima facie, we have no reason to disbelieve the report of the Committee. The report, if true, goes to the root of the democracy itself.
Let a copy of the report be made available to Mr. S.F.A. Naqvi, representing respondent no.5 by 5th of February, 2010. Respondent no.5, shall be free to file his response on that.
List it on 15th February, 2010 before the Bench presided over by Hon'ble Mr. Justice Sunil Ambwani.
Till the next date of hearing, respondent no.5 is restrained from holding any parallel Court.
The Principal Secretary (Home), Govt. of U.P., the District Magistrate, Bijnor and the Superintendent of Police, Bijnor, shall ensure compliance of this order.
Any deviation in carrying out this order, shall be viewed very seriously."
The District Judge, Bijnor submitted his report on the basis of an enquiry made by three Magistrates. In his report he has, on the basis of the satisfaction recorded by the three Magistrates, prima facie found the allegations in the writ petition to be correct. The Addl. Advocate General requested for providing a copy of the report on which we passed an order on 15.2.2010 as follows:-
"Reference to our orders dated 22.10.2009, 24.10.2009 and 17.11.2009, and the directions issued therein, the District Judge, Bijnor has submitted his report 7 based on the evidence collected by, and prima facie satisfaction recorded by the three Magistrates appointed by him. The report was perused by the bench presided by Hon'ble Chief Justice hearing public interest litigation matters on 4.2.2010. The Court observed that the report is very very disturbing, and that if the report is true, the matter goes to the roots of the democracy itself.
Shri S.F.A. Naqvi, representing respondent no. 5, states that in pursuance to the directions of the Court dated 4.2.2010, he has received the report of the District Judge with the findings of the Committee of Magistrates but that he has not received the materials on the basis of which the findings have been recorded. He has demanded copies of the materials as well as Compact Discs relied upon by the Magistrates. Shri S.F.A. Naqvi has also pressed his objections taken in the short counter affidavit of Mohd. Iqbal-respondent no. 5 to the maintainability of the public interest litigation.
Shri S.G. Hasnain, Additional Advocate General has requested for copy of the intelligence report placed before us on the first day of hearing. He has also demanded copy of the report of the District Judge, Bijnor as well as the materials on the basis of which the three Magistrates have recorded prima facie findings.
At this stage, we do not propose to give copies of the materials on the basis of which the three Magistrates have submitted a report forwarded by the District Judge to respondent no. 5. He has already received a copy of the 18 pages report to which he has not filed any reply so far.
It is submitted by Shri S.F.A. Naqvi that in the absence of the materials on the basis of which the three Magistrates and the District Judge have recorded their findings, his client may not be able to give an effective reply.
An objection has been raised by Shri Suneet Kumar, that if the names of persons examined by the Magistrates are provided to respondent no. 5, their life and status shall be in danger.
Taking into account the facts and circumstances, we reject the prayers to allow the entire material to be given to respondent no. 5 at this stage.
The intelligence report has been placed on record by Shri Suneet Kumar along with the affidavit of Shri Sher Baz Khan. The Additional Advocate General has been given a copy of the affidavit.
Before proceeding further in the matter, we would also like Shri S.G. Hasnain, Additional Advocate General to look into the 18 page report and the findings of the Magistrates as well as the material on the basis of which the findings have been recorded. We therefore direct the 8 Registrar General to provide him the copy of the 18 page report of the District Judge along with the findings of the Magistrates. The Additional Advocate General shall also be allowed to peruse the materials. Such perusal, however, shall be for his eyes only. We request the Additional Advocate General not to allow any other person except Shri A.K. Sinha, Additional Standing Counsel to be present at the time, when he is allowed inspection of the materials. The report of the District Judge, Bijnor along with the findings given by the Magistrates and the materials shall be placed in sealed cover and shall be kept in the custody of the Registrar General, to be produced whenever required by the Court.
The matter shall be listed again on 4.3.2010. A copy of the order be given to Chief Standing Counsel and the Registrar General of the Court by tomorrow, for compliance."
On 15.4.2010 Shri Jyotindra Misra, Advocate General appeared and requested for perusing the entire record. We allowed one of the Registrar to take the record to him to peruse the report as well as the statements given by the witnesses. The order dated 15.4.2010 is quoted as below:-
"With reference to our orders dated 22.10.2009; 24.10.2009; 17.11.2009; and 15.2.2010, and the directions given therein, Shri Jyotindra Mishra, learned Advocate General, appearing for the State, has made a statement that the application for withdrawal of the Session Trial No. 497/2009 pending in the Court of Sessions Judge, Bijnor, shall be withdrawn. He submits that the application for withdrawing the prosecution in a case, in which there are allegations of chasing out the District Judge, who had visited Chandpur to select the site for the Court of Civil Judge (Junior Division), should not have been filed and that such an application even otherwise cannot be allowed by the Sessions Judge.
The sessions trial is fixed for hearing on 23.4.2010. A certified copy of the order shall be sent by the Registry to the District Judge, Bijnor to pass necessary orders.
We had permitted Shri S.G. Hasnain, Additional Advocate General to look into the 18 page report of the District Judge, Bijnor along with the findings of the team of Magistrates. We allowed perusal 'for his eyes only', on the apprehension of Shri Suneet Kumar that if the names of persons and the statements before examined by the Magistrates are provided to respondent no. 5, their life 9 may be in danger. Shri S.G. Hasnain informs that he has looked into the report.
Shri Jyotindra Mishra, Advocate General has made a request to examine the report of the District Judge and the Magistrates along with the statement of witnesses. The Advocate General is the first law officer of the State with preaudiance over all other. He has a right and we respect his right to look into the report.
We, therefore, direct the Registrar General to depute one of the Registrar to take the records after seeking an appointment with the Advocate General, for his perusal. The Advocate General is requested not to make copies of the record which is lying in sealed cover with the Registrar General.
List again on 4.5.2010 as the first case of the list to be taken up at 10.00 AM."
We have heard the parties at length including Shri S.F.A. Naqvi, learned counsel for respondent No.5 on 14.5.2010 and reserved the order.
A preliminary objection has been taken by Shri S.F.A. Naqvi that the writ petition is not maintainable at the instance of the petitioner. It is submitted by him that the writ petition has not been filed in public interest. The petitioner wants to settle his personal scores with respondent No.5. He filed a criminal complaint under Sections 156 (3), 504 and 506 CrPC alleging that he was also a candidate for the BSP ticket in the assembly elections. The writ petition has been filed with false allegations. The petitioner and respondent No.5 are political rivals. Since the petitioner did not get the BSP ticket to contest the elections, he has filed the public interest litigation, on false and inadmissible evidence namely the compact disc of the alleged telecast of Zee News. The compact disc appears to be a tampered document.
Shri S.F.A. Naqvi would submit that the present petition is also barred by the principles of resjudicata as for the same cause of action the petitioner had earlier approached the Chief Judicial Magistrate, Bijnor by filing a complaint case giving the details regarding the alleged holding of Public Court (Lok Adalats) by the respondent No.5. The allegations contained in the writ petition 10 were made the ground for filing the complaint before the Chief Judicial Magistrate. The complaint was rejected on 9.4.2009, in the absence of the petitioner. He is now estopped from raising the same grievance in the guise of public interest litigation.
Shri Naqvi submits that the general elections to the assembly of Uttar Pradesh were held in the month of May, 2007 and that thereafter the petitioner was greatly annoyed with respondent No.5 and in order to seek revenge he had filed criminal complaint on 23.9.2008 with the same allegations. He did not pursue the complaint. It was dismissed in his absence after giving several opportunities to produce the evidence. The complaint was consigned to record under Section 203 CrPC. In the complaint same allegations were made namely the broadcast on Zee News channel, and the news item in the newspapers showing that the respondent No.5 is holding Lok Adalats, and alleging that he was looting millions of rupees of the public. The petitioner having failed to adduce evidence in the complaint should not be allowed to plead same facts in the writ petition. Shri Naqvi further submits that the petitioner has a long criminal history. A number of criminal cases have been registered against him, the details of which have been given in the counter affidavit. The criminal cases pending against the petitioner include impersonating as Advocate in the High Court for which an FIR under Sections 420, 467, 468 IPC P.S. Civil Lines, Allahabad registering Case Crime No.315 of 2007 was registered against the petitioner. The list of 14 criminal cases pending given in the counter affidavit is detailed as below:-
"1. Crime No.294 of 2003 U/s. 323, 504, 504 IPC
2. Crime No.68 of 1997 U/s. 452, 307 IPC
3. Crime No.69 of 1997 U/s. 25 Arms Act
4. Crime No.765 of 2002 U/s. 110 G-Cr.P.C.
5. Crime No.439 of 2001 U/s. 147, 364, 511, 323, 326, 504, 452 IPC
6. Crime No.16 of 2002 U/s. 3 (1) of U.P. Gangster Act
7. Crime No.491 of 1995 U/s. 307, 427 IPC
8. Crime No.372 of 2001 U/s. 452, 504, 506 IPC 11
9. Crime No.95 of 1995 U/s. 307, 504, 506 IPC
10. Crime No.411 of 1998 U/s. 307 IPC
11. Crime No.1055 of 2004 U/s. 3 (1) Goonda Act
12. Crime No.45 of 2008 U/s. 419, 420 IPC
13. Crime No.315 of 2007 U/s. 420, 467, 468 IPC Police Station Civil Lines, Allahabad.
14. Crime No.122 of 2008 U/s. 420 IPC"
Shri S.F.A. Naqvi submits that the petitioner was suspended by the State Government for committing financial irregularities on the post of Chairman, Nagar Palika Parishad, Chandpur, Bijnor. His financial powers were ceased and a show cause notice was issued. A Writ Petition No.62660 of 2008 was filed by him in which an order was passed by this Court on 21.1.2009 in pursuance to which he was required to file explanation before the State Government. In his reply the petitioner had made allegations against respondent No.5 as a person, who was instrumental in getting the orders of suspension issued against him. The petitioner has made allegations against the entire district administration and, whenever any case is lodged against him, he find a hidden hand of the respondent No.5 in it.
Shri Naqvi submits that as soon as the notice of the writ petition was served upon respondent No.5, he immediately sent a letter to the Chief Editor of the Zee News channel on 16.12.2009 stating that the news item shown on its channel on 7.9.2008 is based upon certain documentary material and that the respondent No.5 has asked him to provide original copy of the news item as well as the copy of the compact disc of the news item on the same term as it was provided to the petitioner. The respondent No. 5 also requested the news channel to provide details of the reporter, who had collected the news item in question, the name of the camera man, who had recorded the news item, for which he was prepared to pay the necessary expenses. The compact disc contains certain material, which was required to be proved either by primary or secondary evidence. He submits that under Sections 65A, 65B of the Evidence Act, 1872 the contents and 12 voice recording on CDs are liable to be proved before any reliance can be placed upon it by the Court. The petitioner is required to prove whether this CD was prepared by a combination of computer operating therein or by different computers operating in succession over that period or different combination of computers. The conditions mended in Section 65 of the Act have not been fulfilled. The certificate to be issued under sub-clause (4) of section 65-B of the Evidence Act is liable to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities. No such certificate has been filed.
Shri Naqvi submits that respondent No.5 is the Member of the Legislative Assembly. He is a constitutional functionary and is under threat of his image in the eyes of the general public. He had informed the Chairman of the Legislative Assembly, Lucknow, regarding the false smear campaign being adopted by certain quarters on the basis of CDs in question. The application dated 15.2.2010 was received by the office of the Chairman of Legislative Assembly on the next day. The issue raised by Shri Munna Singh Chauhan was also based on same CD. No other fresh material except the CD was available. The commentary (audio) was inserted in the news item subsequently. The comments of the commentator did not have any basis at all. He was unnecessarily trying to do fishing in the issue.
On the report of the Special Intelligence Cell prepared by Shri O.P. Kapoor placed before the Court on 15.2.2010 alleging and reporting these activities, it is submitted by Shri Naqvi that the affidavit sworn on 9th November, 2009 was antedated. The State Government has denied the preparation and submission of any such report by Shri O.P. Kapoor designated as Zonal Officer, Special Intelligence Cell, Moradabad. It is a non-existing 13 document and that no such person holding such designation was working at that point of time.
So far as the report submitted by the District Judge, Bijnor on 16.11.2009 is concerned, Shri Naqvi submits that the counsel for respondent No.5 has only been given the report of the District Judge and the conclusions drawn by the Committee of Magistrates. The statement of witnesses and material on the basis of which the report was drawn by the Committee of Magistrates was not provided along with the report. A request was made to the Deputy Registrar (Judicial) vide letter dated 9.2.2010 to provide the entire evidence to which reply was given vide letter of the Asstt. Registrar, Writ-C dated 11.2.2010 that the papers and documents as well as the compact disc will be supplied only after the orders of the Court. Shri Naqvi submits that the press note issued by the Committee of Magistrates in daily newspaper 'Amar Ujala' requires the general public to produce their evidence on 3.11.2009 and 4.11.2009, in which only those persons were required to come forward, who were willing to give evidence against the respondent. The tone and tenor of the news item suggested that there are allegations made against the respondent No.5. Only in the last line it was mentioned that the committee has been constituted and that those, who are interested may come forward to submit the evidence. The tenor and tone of the news item gave out an impression that the enquiry committee was to only collect evidence against the respondent No.5. The news item and the acceptance of only such persons, who were willing to give evidence against the respondent No.5 has caused injustice to the respondent No.5. The names of the persons, who had deposed and the contents of their deposition has not been provided to the respondent No.5. He would submit that the persons belonging to the group of petitioner alone were allowed to be examined by the Magistrates and that no reliance can be placed 14 upon the report and the opinion of the District Judge on such report.
Shri Naqvi has relied upon various judgments of the Supreme Court in which it was held that public interest litigation should not be allowed to be drawn to settle personal scores for political purposes. He has relied upon the judgment in Writ Petition (Civil) No.353 of 2006, Kunga Nima Lepcha & Ors. Vs. State of Sikkim & Ors. delivered by Supreme Court on 25.3.2010; Holicow Pictures (Pvt.) Ltd. Vs. Prem Chandra Mishra & Ors., (2007) 14 SCC 281; Neetu Vs. State of Punjab, (2007) 10 SCC 614; Dr. B. Singh Vs. Union of India & Ors., (2004) 3 SCC 363; Rural Litigation & Entitlement Kendra Vs. State of U.P., AIR 1988 SC 2187; Balco Employees Union Vs. Union of India & Ors., 2002 SCC 333; Bihar Legal Support Society Vs. Chief Justice of India, AIR 1987 SC 38, and the latest judgment of the Supreme Court in the matter of public interest litigation in State of Uttaranchal Vs. Balwant Singh Chaufal & Ors., (2010) 3 SCC
402. Shri Naqvi has also relied upon the judgment in State of Karnataka & Anr. Vs. All India Manufacturers Organization & Ors., (2006) 4 SCC 683 and Forward Construction Company Vs. Prabhat Mandal, AIR 1986 SC 391 for attracting principle of resjudicata and the judgment in B.K. Subbarao Vs. Mr. K. Parasaran, (1996) 5 SCC 530 for withholding documents from the Court.
Shri U.N. Sharma appearing for the petitioner states that where serious issues of public importance are raised and the complaint goes to the root of the democratic principles enshrined in the Constitution of India, the Court must interfere to protect the general public. He submits that a member of Legislative Assembly should not be allowed to subvert the law by holding courts and enforcing his decrees on the people. The Zee News channel has only highlighted the issue, which was supported by 15 the report of the Zonal Intelligence Officer, and a team of Magistrates appointed by the District Judge, Bijnor in pursuance to the order of the Court. He would submit that even if the compact disc is true and correct copy of the record, a prominent news channel, newspaper item, questions raised in the assembly and the report of the Zonal Intelligence Officer, Moradabad clearly establishes that the respondent No.5 was running a parallel court. He was accepting the court fee and giving decrees after accepting the amount from both the parties in civil cases as well as criminal cases like murder and rape etc. The team of magistrates invited all the persons to give evidence. The persons, who had genuine complaints came forward and deposed before the Magistrates. Their opinion has been forwarded by the District Judge, Bijnor to the Court clearly pointing out the finger of accusation against the respondent No.5.
Shri Umesh Narain Sharma submits that the then District Judge, Bijnor Shri S.C. Agrawal (now Hon'ble Judge of the High Court) was not allowed and his team was chased away on his visit to Chandpur for selecting site for outlying court at Chandpur Distt. Bijnor. He had to leave Chandpur in a hurry, with the help of district administration. His car was left at Chandpur alongwith his diary, which was later on recovered and handed over to him. The State is trying to hush up the criminal case lodged against 20 persons and has actually applied to withdraw the case. Learned Advocate General has rightly stated that the cases with such serious allegations should not have been withdrawn under Section 320 CrPC and has undertaken that the application for withdrawal shall not be pressed.
Shri Umesh Narain Sharma has relied upon the judgments in State of West Bengal Vs. Committee for Protection of Democratic Rights & Ors., 2010 (4) ADJ 158 (SC); Vishwanath Chaturvedi (3) Vs. Union of India & Ors., (2007) 4 SCC 380; Guruvayoor Devaswom Managing Committee & Anr. Vs. C.K. 16 Rajan & Ors., (2003) 7 SCC 546; Centre for Public Interest Litigation Vs. Union of India & Ors., AIR 2001 SC 80; M/s Lipton India Ltd. Vs. State of Karnataka, AIR 1997 SC 1911; Kuldeep Nayyar Vs. Union of India, (2006) 7 SCC 1 and State of Bihar Vs. Balmukund Shah, (2000) 4 SCC 640 in support of his submissions that in such matters the Court must interfere and protect the citizens. In this case the respondent No.5 was using his influence in the area to decide the cases and thereby mocking on the Constitution of India, which separates judiciary from executive and legislature. A member of Legislative Assembly sitting in the Assembly as elected representative, has greater responsibility. Instead of expediting the process of establishing the Court he had delayed the selection of site and was instrumental in chasing away the District Judge, Bijnor. He was, thereafter, accepting the court fees and deciding the cases on deposit of money from both the parties. The people of the area of Chandpur were under constant threat and terror of his illegal influence. He was not only deciding the cases by holding 'Kangaroo courts' (unofficial court) in the name of Lok Adalats but was also enforcing his decrees.
Shri Sharma submits that there is nothing to show that any person was not allowed to depose before the team of Magistrates appointed by the District Judge under the orders of the Court. The complainant had clearly deposed before the team of Magistrates that the respondent No.5 was engaged in the activity of deciding cases and thereafter executing his decrees. The complaint goes to the root of democracy. The Chairman of the Legislative Assembly did not take any action against the respondent No.5, as he belongs to minority community and was member of ruling party. Inspite of giving assurance to the house the Chairman of the Assembly, did not cause any enquiry nor took any action against the respondent No.5.
17Shri Sharma would further submit that the report of Shri O.P. Kapoor is genuine document, which is now denied by the police department. It was a routine intelligence exercise and the report was submitted by the competent authority. He submits that the State has not denied that Shri O.P. Kapoor was not posted as Zonal Officer, Intelligence at Moradabad. The manner in which the report has been denied, clearly shows that the State does not want to accept the allegations made against the sitting M.L.A. Of the ruling party.
In Kunga Nima Lepcha & Ors. (Supra) the Supreme Court said that the Court cannot sit in judgment over whether investigations should be launched against politicians for alleged acts of corruption. The Supreme Court functions as a Constitutional Court as well as the highest appellate court in the country. If it gives direction for prosecution, it would cause serious prejudice to the accused, as the direction of this Court may have far reaching persuasive effect on the Court which may ultimately try the accused. It is always open to the petitioner to approach the investigative agencies directly with the incriminating materials and it is for the investigative agencies to decide on the further course of action.
In Holicow Pictures (Private) Ltd. (Supra) the Supreme Court relying upon Janata Dal Vs. H.S. Chowdhary, (1992) 4 SCC 305 and the long line of cases decided by the Supreme Court held that where a person acting bona fide and having sufficient interest in the proceeding of public interest litigation approaches the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, the Court may interfere. The Courts, however, should not exercise jurisdiction for personal gain or private profit or political motive or any oblique consideration. Where the Court comes to conclusion that the writ petition was not filed in public interest, yet if it finds that there is scope for dealing with the matter, it can, by keeping the writ 18 petitioner out of picture appoint an amicus curiae to pursue the matter. This, however, can only be done in exceptional cases and not in routine manner.
In Neetu Vs. State of Punjab & Ors. (Supra) the Supreme Court held that easy access to justice should not be misused as licence to file misconceived and frivolous petition (Buddhi Kota Subbarao (Dr.) Vs. K. Parasaran, (1996) 5 SCC 530). The people rush to the Court to file cases in profusion under the attractive name of public interest. They must inspire confidence in Court and among the people. The public interest litigation as weapon should be used with great care and circumspection. 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 armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. The Courts must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations by masked phantoms, who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain fore a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejecting at the threshold, and in appropriate cases with exemplary costs.
19In State of Uttaranchal Vs. Balwant Singh Chaufal & Ors. (Supra) the Supreme Court in its judgment dated January 18th, 2010 directed all the High Courts to prepare Rules to regulate filing of genuine PIL and discouraging PIL filed with oblique motives. The Courts should prima facie verify the grievance of the petitioner before entertaining a PIL. It should be prima facie satisfied regarding correctness of the contents of the petition and should ensure that the matter involves public interest's gravity and urgency. The Court should ensure that PIL is aimed at redressal of genuine public harm or public injury. There should be no personal gain, private motive or motive behind filing the public interest litigation. The Supreme Court has cautioned that the petition filed by busy bodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitioners filed for extraneous considerations.
In the present case it is not denied by the petitioner that he has filed a writ petition in the High Court challenging his suspension as an elected Chairman of Zila Panchayat making allegations of malafides against the respondent No.5. He has also not denied that there are criminal cases pending against him and that he had made efforts to become official candidate of the Bahujan Samaj Party to contest the elections in the year 2007, for legislative assembly from Chandpur. He did not succeed in obtaining the official nomination of the Bahujan Samaj Party. It is also not denied by him that he filed criminal complaint against the respondent No.5 making same allegations in which the telecast by Zee News channel and the newspaper reports were relied upon by him. He, however, did not choose to pursue the criminal complaint and allowed it to be dismissed in his absence. He has not filed any further complaint on the same allegations, which is not barred in law for prosecuting respondent No.5. It was open to him to lead evidence in the criminal complaint and prove that 20 respondent No.5 is holding courts by accepting the court fees and giving decrees and executing them. He failed to lead evidence and pursue the complaint. The petitioner has not given any satisfactory reply as to why the complaint was not persuaded, and instead this writ petition by way of public interest litigation is filed in the High Court.
The State Government has denied that Shri O.P. Kapoor has given any such intelligence report, in which the respondent No.5 was allowed to be holding parallel court at Chandpur. We are not interested in making detailed enquiry into the facts whether such a report was submitted, as the report was not initially filed with the affidavit. The affidavit was filed at a later stage annexing the report. Shri O.P. Kapoor has denied that he had submitted any such report to the State Government.
So far as the report of the District Judge is concerned, we are of the opinion that the material collected by the Magistrates can be relied upon in an appropriate criminal complaint filed against the respondent No.5. It will, thereafter, be open to the parties to lead evidence and to establish whether interested persons were allowed to appear before the Magistrates and that there was sufficient, relevant, admissible evidence to show that the respondent No.5 was not holding courts at Chandpur. The report of the Magistrates and the District Judge, Chandpur, prima facie found the allegations of holding courts to be established against the respondent No.5. The evidence led before them can be used as material to initiate investigations against the respondent No.5. In our opinion the statements of the witnesses, alleged to be interested, would not by itself be sufficient to issue any directions to prosecute respondent No.5. Shri Jyotindra Misra, learned Advocate General has very fairly stated that the State Government will not press the application under Section 320 to withdraw the criminal case against the persons, charged with the allegations of chasing away the District Judge from Tehsil 21 Chandpur Distt. Bijnor to select the site for establishing the outlying court. He states that the outlying court has since been established and is functioning at Chandpur Distt. Bijnor. The general public of Tehsil Chandpur is filing civil and criminal cases. These cases are being tried by the outlying court. He would submit that the law should take its own course, and that if there is sufficient material and evidence against the persons for having staged demonstrations on which the then District Judge, Chandpur left leaving his car and diary behind, the Court will prosecute and punish them.
From the material produced before us and the affidavits filed by the parties, we are not satisfied that this public interest litigation alleging disturbing facts has been filed in genuine public interest. No one from general public, who has sufferred at the hands of the respondent No.5 has come forward to make allegations against him. The petitioner was political rival of respondent No.5 in the general assembly elections in the year 2007. He failed to get nomination of the ruling party to contest the elections. The respondent No.5 was elected as member of Legislative Assembly. On his complaint the petitioner working as President of Zila Panchayat was suspended from his office. The petitioner filed a criminal complaint against the respondent No.5 in the court of Chief Judicial Magistrate, Bijnor making same allegations of holding 'Kangaroo' courts, and relying upon the same facts. He did not pursue the matter and allowed the criminal complaint to be dismissed. This writ petition was, thereafter, filed with the prayers to restore rule of law at Tehsil Chandpur Distt. Bijnor; to direct respondent No.1 to take legal action against the respondent No.5, restrain him from holding parallel court and to issue any other suitable writ order or direction, which this Hon'ble Court may deem fit and proper to which the petitioner may be found entitled to in the facts and circumstances of the case.
22With the establishment of outlying court of Civil Judge (JD), also exercising the powers of Magistrate Ist Class, the cases are now being filed in the court and are being persuaded in Tehsil Chandpur, Distt. Bijnor. The legal action was initiated against the respondent No.5 by the petitioner himself by filing criminal complaint under Section 156 (3) of Code of Criminal Procedure. He did not choose to pursue the same and allowed it to be dismissed in his absence. He has not filed any further complaint on the same evidence against the respondent No.5 so far. We are as such not inclined to give any directions to lodge criminal case against the respondent No.5 in these proceedings.
We make it clear that we have not recorded any finding or have expressed any opinion on the correctness of the allegations made against the respondent No.5. Prima facie there is material available on record that the respondent No.5 held 'Kangaroo' courts, accepted court fees, decided cases and enforced his decrees by force and which are indeed high crimes against democracy and subversion of the Constitution of India as by law established. The allegations, however, have to be proved beyond doubt by cogent and admissible evidence in accordance with law in the prosecution to be launched against the respondent No.5. We, however, do not want to proceed to give any direction in this writ petition filed in public interest on the ground that the petitioner is admittedly a political rival of respondent No.5. He was suspended from the office of President, Nagar Palika Parishad, Chandpur, Distt. Bijnor on the allegations of malafide levelled by him against the respondent No.5 and further that the petitioner himself is facing a large number of criminal cases and prosecution including impersonating as lawyer in the High Court for which a criminal complaint was lodged against him by the Court. The principles of caution, settled by the Supreme Court to entertain public interest litigation in the matters of political rivalry 23 and the tainted locus of the petitioner does not permit us to issue any direction in the matter.
The constraints of locus and the caution to be exercised by the High Courts in entertaining public interest litigation may not be a bar to the State or any other person to file criminal complaint against the respondent No.5, and to invoke the jurisdiction of the criminal courts to prosecute respondent No.5, by leading cogent, relevant and admissible evidence and to prosecute him.
The matter has been brought to the notice of the Chairman of the Upper House in the State Assembly. We are confident that the State Legislature will, without being prejudiced by the fact that the respondent No.5 is a sitting Member of Legislative Assembly, belonging to the ruling party and Minority Community, make independent and impartial enquiries and take action against him. The Advocate General has assured us that the State Legislature will take appropriate steps in the matter and will not allow a conflict to arise between the legislature and the judiciary in the State. We leave it to the leader of the house, with trust and confidence, that he will take appropriate action against the respondent No.5. It will be open to him to rely upon the material produced, and the report of the District Judge, Bijnor.
The writ petition is dismissed with the aforesaid observations.
Dt.16.07.2010 SP/