Calcutta High Court (Appellete Side)
Empathy 05 & Anr vs Central Bureau Of Investigation & Ors on 20 February, 2009
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
10 20.02.09 W.P. No. 1729 (w) of 2009
Empathy 05 & Anr.
Vs.
Central Bureau of Investigation & Ors.
Mr. Subrata Mukhopadhyay,
Mr. Bhaskar Ghosh
Mr. Rabi Sankar Chatterjee
Mr. Shamim Ahmed.
........... for the
petitioners.
Mr. Ranjan Kumar Roy
........... for C.B.I.
Mr. Sandip Srimani,
Mrs. Sucharita Saha
Mr. Chowdhury Faruk Ali
........... for the State.
Mr. G. Srivastava,
Mr. Sukanta Das
........... for the
respondent No 5.
Mr. Sudeep Sanyal, Mr. Atif Siddiqui ........... for the respondent No. 6.
Mr. Abhrajit Mitra ........... for the respondent No 7.
This public interest litigation seeks a direction upon the respondent No.3 to initiate proceedings against respondent Nos.5, 6 and
7. After hearing the learned counsel for the petitioner at length we are unable to accept any of the submissions made by the leaned counsel for the petitioner.
The petitioner No. 1 claims to be a society registered under the Indian Societies Act, 1961 having its office at Kolkata. The petitioner No. 2 claims that he is a citizen of 1 2 India and is the Secretary of the Society- petitioner No. 1. The petitioners, thereafter, state that they took up the cause for alleviation of the sufferings of the aggrieved persons, particularly the down-trodden section of the society. They stand up against the social norms particularly those which go against the democratic norms and values. The petitioners also claim to have earlier filed public interest litigation regarding famous Nandigram episode being W.P. 335 (W) of 2008.
Learned counsel for the petitioner submits that in the aforesaid Writ Petition on 30th April, 2007, this Court directed the respondent authorities to ensure protection to the local residents of Nandigram area including their lives and liberties in accordance with Article 21 of the Constitution of India. The State authorities were directed to take adequate measures to ensure the maintenance of law and order in the area. In the present case, after investigation of the matter in accordance with the direction issued by this Court in Writ Petition No.21563 of 2007, the State authorities have failed to initiate any criminal proceedings against respondents No. 5, 6 and
7. Therefore, necessary directions need to be issued by this Court to ensure that persons with vested interest of protecting the guilty are punished in accordance with law. Learned counsel also submitted that since the petition was filed immediately on reading newspaper reports, the petitioner has not been able to attach much of the relevant 2 3 materials with the petition. The petition may be permitted to file the same as and when it would be available to the petitioner, with the leave of the Court. Learned counsel also submitted that he is aware of the pendency of the proceedings in the Appeal Court as also in the Criminal Court on the same issues. Learned counsel, however, submits that separate directions are required in this writ petition to ensure that respondents No. 5, 6 and 7 are not able to escape punishment for the crimes committed by them.
Mr. Abhrajit Mitra, appearing for respondent No.7 submits that the present writ petition is liable to be dismissed as the petitioners have failed to establish their locus standi. Even otherwise the writ petition is motivated at the instance of some unknown persons. It is also submitted that the writ petition is in fact a publicity interest litigation taking advantage of the publicity which surrounded the death of a young man named Rizwanur. The petitioners seek to rely on certain newspaper reports in support of the claim that the respondents have been deliberately shown favour by the investigating authority This apart, according to the learned counsel the proceedings are still pending in the Court of appropriate jurisdiction.
We have considered the submissions made by the learned counsel for the parties. The writ petition is wholly bereft of any material particulars to establish the credentials 3 4 of the petitioners for filing the present writ petition. Admittedly, the writ petition is only based on the newspaper reports attached with the writ petition. The learned counsel for the writ petitioners has candidly admitted before this Court that the writ petition is based only on the newspaper reports. It has been filed without attaching any of the relevant materials in support of the averments made in the writ petition. The writ petitioners have miserably failed to satisfy this Court as to whose cause is being espoused by them. The fact that the writ petition lacks a material particulars and the supporting evidence is clearly admitted in paragraph 24 of the petition, which is as under
:-
"Your petitioners further state that your petitioner have not been able to obtain certain documents and/or papers which in the opinion of your petitioners is necessary for proper adjudication of the instant case at the time of filing the instant petition and craves leave to file the same as and when the same would be available to your petitioners and/or to refer and rely upon it at the time of hearing if necessary."
These averments clearly demonstrate that the writ petition has been filed without taking due care to ascertain the factual and legal position. However, from a perusal of the averments made in paragraph 5 of the writ petition it becomes apparent that writ petition No.21563 of 2007 was filed in this Court for appropriate directions. This Court had directed C.B.I. enquiry. The C.B.I. has 4 5 conducted the necessary enquiry and a report has been submitted to the Court. The averments made in paragraph 15 of the writ petition clearly show that according to the petitioner for some unknown reason, the CBI authorities have failed and/or neglected and/or refused to initiate any proceedings against the respondents No.5, 6 and 7. Not only the CBI has failed to initiate proceedings it has made statements in the Press that CBI has not been able to gather sufficient evidence against respondents No.5, 6 and 7 to initiate criminal proceeding. These averments are not supported by any worthwhile material of which this Court would take cognizance.
On the other hand, there is merit in the submissions made by learned counsel Mr. Abhrajit Mitra. We are of the considered opinion that the writ petition is motivated and has been filed at the instance of some unknown person(s). We also agree with the submission of the learned counsel that the writ petition is, in fact, a Publicity Interest Litigation which has been filed only by taking advantage of the publicity which surrounded the death of Rizwanur. The writ petition has been filed purely on the basis of the newspaper report. No judicial notice can possibly be taken of the aforesaid newspaper reports in the absence of the maker of the statement appearing in Court and deposing to have perceived the facts reported. This principle of law has been laid down by the Supreme Court in the case of Laxmi Raj Shetty vs. State of Tamil Nadu, reported in AIR 1988 SC 1274. In this case the Supreme 5 6 Court reiterated the law as to the admissibility of the newspaper reports as evidence as laid down by the Supreme Court in the case of Samant N. Balakrishna vs. George Fernandez, reported in AIR 1969 SC 1201. There the question arose whether Sri George Fernandez, the successful candidate returned to Parliament had delivered a speech attributed to him as reported in the newspapers. The Supreme Court held as follows :-
"A newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a second hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible."
In Laxmi Raj Shetty case the Supreme Court observed as follows :-
"....... We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can 6 7 be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein."
The ratio of law in the aforesaid two judgments has been reiterated by the Supreme Court in the case of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Anr., reported in AIR 1993 SC 1348. In view of the above, the submission made by Mr. Abhrajit Mitra has to be accepted as the writ petition admittedly is based only on newspaper reports. We are of the opinion that the writ petition is an abuse of the process of the Court. It is frivolous, vexatious and has not been filed bona fide. Repeatedly the law has been laid down by the Supreme Court that it is incumbent on the High Court to satisfy itself with regard to the bonafide of the writ petitioner. It is also necessary for the High Court to ensure that frivolous, vexatious public interest writ petitions are not entertained especially at the instance of inter lopers and busy bodies. We may notice here the relevant observations of the Supreme Court in some of the judgements in which the Supreme Court has shown concern over the misuse of the public interest litigation. In the case of Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305, at page 348, after tracing the history and development of the Public Interest Litigation in india it was observed :
"109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears 7 8 of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold."
The same view was reiterated in Dattaraj Nathuji Thaware vs. State of Maharashtra,(2005) 1 SCC 590, at page 594 :
"11. It is depressing to note that on account of such trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing the gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters -- government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorised collection of tax amounts are locked up, detenus expecting their release from detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other 8 9 extraneous motivation or for glare of publicity, break the queue muffling their faces by wearing the mask of public interest litigation and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the courts never moves, which piquant situation creates frustration in the minds of genuine litigants and resultantly they lose faith in the administration of our judicial system.
12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not be publicity-oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. 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 for a good deal as well as 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 rejection at the threshold, and in appropriate cases with exemplary costs.
14. The court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the 9 10 information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with impostors and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect."
In a recent decision of the Supreme Court in the case of Common Cause (A Regd. Society) v. Union of India,(2008) 5 SCC 511, at page 532 it was observed :
"59. Unfortunately, the truth is that PILs are being entertained by many courts as a routine and the result is that the dockets of most of the superior courts are flooded with PILs, most of which are frivolous or for which the judiciary has no remedy. As stated in Dattaraj Nathuji Thaware case [(2005) 1 SCC 590] public interest litigation has nowadays largely become "publicity interest litigation", "private interest litigation", or "politics interest litigation" or the latest trend "paise income litigation". Much of PIL is really blackmail.
60. Thus, public interest litigation which was initially created as a useful judicial tool to help the poor and weaker section of society who could not afford to come to courts, has, in course of time, largely developed into an uncontrollable Frankenstein and a nuisance which is threatening to choke the dockets of the 10 11 superior courts obstructing the hearing of the genuine and regular cases which have been waiting to be taken up for years together."
Keeping in view the law laid down by the Supreme Court in the judgments referred to hereinabove, we have examined the materials placed on the record by the petitioner and find that the petitioner has no locus standi to move the instant Pubic Interest Litigation.
We find no merit in the petition. The writ petition is accordingly dismissed.
Xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned counsel for the parties on usual undertaking.
( SURINDER SINGH NIJJAR, C.J.) (BISWANATH SOMADDER, J.) 11