IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 2170 of 2010 1. ALOK S/O LATE DR. B.P. SINGH R/O- A/84 POLICE COLONY, ANISABAD, P.S.- PHULWARISHARIF, DISTT.- PATNA, AT PRESENT SUB-DIVISIONAL POLICE OFFICER, SADAR, BETTIAH (UNDER SUSPENSION) WITH HEADQUARTERS IN THE OFFICE OF ZONAL INSPECTOR GENERAL OF POLICE, PATNA ZONE, PATNA Versus 1. BIHAR STATE HUMAN RIGHTS COMMISSION 9 BAILEY ROAD, PATNA THROUGH ITS SECRETARY 2. SRI GAJENDRA PRASAD @ GAJENDRA KUMAR S/O DR. RAGHUNATH PRASAD R/O KOTWALI CHOWK (KHIRIA GHAT), P.S.- BETTIAH TOWN, DISTT.- WEST CHAMPARAN 3. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVERNMENT OF BIHAR, PATNA 4. THE HOME SECRETARY GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 5. THE DIRECTOR GENERAL OF POLICE BIHAR, PATNA 6. INSPECTOR GENERAL OF POLICE MUZAFFARPUR RANGE, MUZAFFARPUR 7. DEPUTY INSPECTOR GENERAL OF POLICE CHAMPARAN RANGE, BETTIAH 8. SUPERINTENDENT OF POLICE WEST CHAMPARAN, BETTIAH 9. THE COLLECTOR-CUM-DISTRICT MAGISTRATE WEST CHAMPARAN, BETTIAH *** For the petitioner : M/s Pushkar Narain Shahi & Sanjeet Kumar Singh, Advocates For the S t a t e : Mr Rajesh Kumar Singh, AC to AAG II *** 2 05.03.2010 The petitioner was proceeded against at the instance of one Gajendra Prasad. It appears that on 10.04.2008, the petitioner, who was the Subdivisional Police Officer, Bettiah, is said to have assaulted the said complainant with ulterior motive. The complainant made two complaints, apart from others, one to the National Human Rights Commission (NHRC), New Delhi and second to the State Human Rights Commission (SHRC), Patna. The complaint to the SHRC was apparently made on 01.12.2008 that is much within one year of the occurrence. The NHRC 2 virtually consigned the matter having forwarded it to the Department for necessary action as they may deem fit. So far as the SHRC is concerned, though the complaint was received and registered on 01.12.2008, it took cognizance of the matter apparently on 30.04.2009. It ordered for enquiry and pursuant to reports received from the Superintendent of Police, Bettiah found the petitioner guilty of violating the complainant’s human rights. It awarded cost and recommended disciplinary proceedings against the petitioner. Let it be recorded that those proceedings were ex parte as against the petitioner. Petitioner then, from newspaper having come to know of such an order passed against him by SHRC, filed a review application stating that when notices were issued to him at Bettiah, he had already been suspended with Headquarters at Patna and it is because of that notices were never served upon him and he did not appear before the SHRC. SHRC then considered the matter on review and considering the case on merit, after hearing the petitioner, by their order dated 26.11.2009, rejected the review and affirmed their earlier order on merits. It is this order against which the present writ application has been filed. As before the SHRC, so before this Court, the first ground of challenge was on the bar as contained in Section 36 (1) read with Section 21 (5) of the Protection of Human Rights Act, 1993 which, inter alia, provides that if one Commission has taken up enquiry into an incident then that cannot be enquired by another Commission, submission being NHRC having taken up 3 the matter, SHRC could not have taken up the enquiry. Before this Court, a second submission was also made. It was submitted that in terms of Section 36 (2) of the said Act, SHRC was incompetent to take cognizance of the matter and order enquiry as more than one year had elapsed since the incident took place. The enquiry, as conducted by SHRC, is thus barred by limitation and there being no power to extend the limitation or condone the delay, all actions taken by SHRC were void ab initio and wholly without jurisdiction. Heard the parties and with their consent, the writ application is being disposed of at this stage itself. In order to appreciate the contention, as raised on behalf of petitioner by Shri Pushkar Narain Shahi, learned counsel, I must refer to the provisions of Section 36 of the said Act which are quoted hereunder : “ 36. Matters not subject to jurisdiction of the Commission.- (1) The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force. (2) The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed.” Coming to the first issue, in my view, it merits no consideration. SHRC has already decided the issue and correctly in my view. Complaints were made both to NHRC and SHRC by 4 the complainant. NHRC did not proceed to enquire into the matter. It forwarded the matter to the Department to take necessary action as they may deem fit and proper. Thus, so far as NHRC is concerned, the matter, thus, ended. That being so, SHRC was not prevented by virtue of Section 36 (1) of the Act from enquiring into the matter as the matter was not pending before NHRC. The matter had been consigned to the departmental authorities. Thus, this issue is decided against the petitioner. Coming to the second issue, the facts, as noted above, is that on 10.04.2008, the incidence of assault on human right took place. Complaint was duly filed on 01.12.2008. The period of limitation for exercise of jurisdiction is one year from the incidence. Thus, submits learned counsel for the petitioner that SHRC was within its jurisdiction to take cognizance of the matter and initiate enquiry upto 09.04.2009 but not having done so and having passed formal orders on 30.04.2009, it acted beyond jurisdiction. All enquiries were without jurisdiction. For this purpose, reliance has been placed on decision of the Apex Court in the case of N C Dhoundial –Versus- Union of India (2004) 2 Supreme Court Cases 579. Having considered the matter, in my view, the action taken by SHRC cannot be held to be wholly without jurisdiction or hit by the limitation as provided under Section 36 (2) of the Act. It must be kept in mind that the intention of the Legislature is clear that complaints must be made promptly to the Commission for it 5 to act immediately. Stale complaints are not to be taken up. Here, it would be seen that the incident took place on 10.04.2008 and a written complaint was lodged with the SHRC on 01.12.2008. The complainant had done his part. It was now for SHRC to act. The complaint having been duly received and registered, order on 30.04.2009, was a formality. In my view, unless matters are consigned or matters in which Commission refuses to take cognizance, it ends there but the moment complaints alleging human rights violation are duly filed and received in the Commission, it would be deemed enquiry has commenced. If then the matter lies with the Commission, it cannot be said that it would then become barred by limitation by virtue of Section 36 (2) of the Act for more than one reason. Firstly, it is well established principle of law that no act of Court shall prejudice any litigant nor any mistake on part of Court or authority prejudice another. Here complainant had moved well within the time but because of work pressure and other reasons, formal orders could not be passed within the time. The complainant cannot be deprived of his right to seek relief from the Commission by virtue of Section 36 (2) of the Act. The second reason is somewhat similar which provisions to be found in Sick Industrial Companies (Special Provisions) Act, 1985 (SICA for brevity), though not in pari materia. Section 16 of the SICA authorises the Board for Industrial and Financial Reconstruction (BIFR) to make enquiries as it deem fit whether any industrial company has become sick or not upon, inter alia, 6 receipt of a reference from a Company or upon information received with respect to such Company or suo motu. This is similar to Section 12 of the Human Rights Act. Section 22 of the SICA then provides that where in respect of an Industrial Company, an enquiry under Section 16 is pending then various legal proceedings, contracts are automatically suspended. The question arose as to when would enquiry be deemed to be pending. The question was answered by the Apex Court in the case of Real Value Appliances Limited –Versus- Canara Bank and Others sicne reported in AIR 1998 Supreme Court 2064 wherein it was held that the enquiry would be deemed to be pending the day reference is made to the BIFR and it is registered after scrutiny. No formal order ordering enquiry has to be passed. In my view, similar view has to be taken in the present case. The complaint being well within the time and having not been rejected, SHRC was competent to proceed with the enquiry in the matter and by ordering so, by its order dated 30.04.2009, it did not act without jurisdiction and the proceedings are not barred by virtue of Section 36 (2) of the Human Rights Act. Now coming to the case of the Apex Court in the case of N C Dhoundial (supra), the case is clearly distinguishable. There, the complaint to the NHRC was itself made for the first time after four and half years of the incidence. NHRC proceeded with it on the plea taken that the violation was a continuing violation and, as such, fresh period of limitation arose everyday. This was 7 negatived by the Apex Court holding that violation made once was full and complete and non-redressal of the grievance for such a violation did not give a continuing cause of action. The Apex Court, though not relevant for the present purpose, also held that there is no power for condonation of delay in the matter which situation does not arise in the present case. In the case before Apex Court, the complaint itself was given after four and half years whereas in the present case, the complaint was given well within the time prescribed by Section 36 (2) of the Act. Thus, the said case is of no help to the petitioner. Lastly, it was submitted that the report of DIG, which is contrary to the report of the Superintendent of Police, was wrongly not taken into account by the SHRC. This has been considered by the State Human Rights Commission and rightly rejected. DIG took up the enquiry pursuant to the matter having been referred by the NHRC. The Superintendent of Police, Bettiah was under orders of the SHRC to enquire and submit a report. DIG’s report was not a part of the proceedings of SHRC yet DIG took upon himself to adversely comment upon the report of the SP as if he was an appellate authority though the SP was functioning under the orders of the SHRC. DIG submitted report after SHRC had passed the initial final order though it was already informed by the SP that SHRC was already in seisin of the matter. DIG did not approach SHRC in the matter at all and left it to the petitioner to bring the said order to the notice of SHRC. SHRC, thus, rightly 8 refused to take cognizance of the said report. Thus, I find no merit in the writ application. It is dismissed accordingly. M.E.H./ (Navaniti Prasad Singh)