Case: Kishore Samrite Vs. State Of U.P.

1. Challenge in the present appeal is to the order dated 7th March, 2011 passed by a Division Bench of the High Court of Judicature at Allahabad (Lucknow Bench). The operative part of the order reads as underview of all the aforesaid and particularly for the reasons that the writ petition No.111 (H/C) of 2011 was filed on the instructions of Kishor Samrite (who has also sworn the affidavit in support of the writ petition) which contained wild allegations/insinuation against Shri Rahul Gandhi and questions the virtue and modesty of a young girl of 22 years Km. Kirti Singh, we dismiss this writ petition with a cost of Rs.50,00,000/- (Fifty lacs). Out of the cost amount, Rs.25,00,000/- (Twenty five lacs) shall be paid to Km. Kirti Singh and Rs.20,00,000/- (Twenty lacs) to Shri Rahul Gandhi, opposite part no.6. The cost amount shall be deposited within a period of one month with the Registrar of this Court, failing which the Registrar shall take necessary action for recovery of the amount as land revenue.We also record our special note of appreciation for Shri Karamveer Singh, Director General of police, U.P. (a highly decorated police officer), for producing the alleged detenues within the time frame as directed in the order. Thus, for all the promptness and sincerity shown, in themidst of serious law and order problems all over the State on account of some agitation in obeying and complying with the directions, we direct payment of Rs.5,00,000/- (five lacs) towards a reward to the DGP. We also record our appreciation for Shri Jyotindra Misra, learned Advocate General and the State Government for showing concern in this matter.We also direct the Director, Central Bureau of Investigation, to register case against Kishor Samrite, the websites referred to in Writ Petition No.111 (H/C) of 2011 and all other persons who are found involved in the plot, if any, hatched in order to frame up Shri Rahul Gandhi, Member of Parliament from Amethi. We also appreciate Shri 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 concerned parties including the Director, Central Bureau of Investigation, for immediate compliance.Challenge to the above impugned order, inter alia, but primarily is on the following groundsThe Court could not have called for the records of Writ Petition No.111 of 2011. Consequently it lacked inherent jurisdiction to deal with and decide the said writ petition. Furthermore, no order was passed by the competent authority, i.e., the Chief Justice of the High Court transferring that writ petition to the Bench dealing with Writ Petition No.125 of 2011.(ii) The Bench showed undue haste and has not dealt with Writ Petition No.125 of 2011 in accordance with the prescribed procedure.(iii) The order was passed without notice and grant of appropriate hearing to the present appellant.(iv) The orders for imposition of cost and registration of a case against the appellant by the CBI are uncalled for and in any case are unjust and disproportionate as per the known canons of law.Stands on merits is that Writ Petition No.125 of 2011 was, in fact and in law, not a petition for habeas corpus and, thus, could not have been entertained and dealt with by a Division Bench of that Court. The said petition primarily related to transfer of a petition though in the garb of a prayer for production of the corpus. It did not satisfy the pre- requisites of a petition of habeas corpus.4. Writ Petition No.111 of 2011, even if not complete in its form, was maintainable and the same could not have been dismissed by the Court as the prayer by the appellant in that writ petition for habeas corpus was maintainable in view of the right to life and liberty of the petitioners stated therein, as enshrined in Article 21 of the Constitution of India, was violated. The petition had been filed by the appellant as next friend and had not seen the alleged detenues since 4th January, 2007 when they were last seen in Amethi. According to the appellant the representations made to various authorities had failed to yield any results. Thus, that petition was not liable to be dismissed.5. To the contra, it is contended on behalf of the State of Uttar Pradesh thatThe Writ Petition No.111 of 2011 was an abuse of the process of Court. The appellant had not approached the Court with clean hands as the facts as were pleaded by him were not correct to the knowledge of the appellant.(ii) The petition 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.On behalf of Respondent No.6, Shri Rahul Gandhi, it was contended that Writ Petition No.111 of 2011 is an abuse of the process of Court and, in fact, is a motivated petition primarily based on ‘politicalWhile supporting the stand of Respondent No. 1, the State of Uttar Pradesh, it is also contended that the appellant, Shri Kishore Samrite, was a total stranger, had no knowledge of the facts and, therefore, had no right to file the petition as next friend. It was not a case of private detention and the petition filed by the appellant was not in conformity with the rules. The petition was primarily aimed at hurting the reputation and image of respondent No.6 out of ulterior motives and political vendetta.7. According to Respondent No. 7, the Central Bureau of Investigation (for shortit had investigated the matter and found that it was not a case of detention and, therefore, petition for habeas corpus was not maintainable. It had, in furtherance to the order of the Court, registered a case on 11th March, 2011 being RC No.219-2011-(E)2002 under Sections 120B, 181, 191, 211, 469, 499 and 500 of the Indian Penal Code, 1860 (IPC). The CBI could not complete the investigation because of the order of stay passed by this Court on 6th April, 2011. From the limited investigation which was conducted during that period and from the statement of Shri Balram Singh and other witnesses, it came to light that nothing had happened on 3rd December, 2006 as alleged by the appellant. In fact, the persons and the addresses given in the petition were found to be fictitious and non-existent. Shri Balram Singh had not supported the version advanced by the appellant. On the contrary, he had belied the entire version and categorically denied the allegations and informed that the name of his wife and daughter were incorrectly mentioned as Smt. Sushila and Sukanya Devi. In regard to the website, CBI stated that the three suspected websites were posted outside the geographical limits of our country and the originating IP address could not be traced and further investigation had to be stopped. It was specifically contended on behalf of the CBI that the appellant had made no enquiry, had no personal knowledge and that the litigation had been funded from sources other thanown sources.8. Lastly, Respondent No.8 in this appeal, Shri Gajendra Pal Singh, who was the petitioner in Writ Petition No.125 of 2011, has stated that he had filed that petition bona fidely while Writ Petition No.111 of 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 kept in illegal detention by the respondent no.6 and were incapacitated to file the writ petition. It was averred in the petition filed by him before the High Court that he came to know from certain websites viz., www.indybay.org, www.arizona.indymedia.org and www.intellibriefs.blogspot.com, which contained news items stating that on the night of 3rd December, 2006, while on a tour of his parliamentary constituency in Amethi, respondent no.6, along with six of his friends (two from Italy and four from Britain) committed rape on Sukanya Devi, daughter of Balram Singh. The appellant placed the said news reports on record along with the writ petition.11. The writ petition also contained the averment that Balram Singh is a congress worker in Amethi constituency and Sukanya Devi along with Sumitra Devi wanted to report the said incident but the concerned authorities did not lodge the complaint. They approached various other authorities but to no avail. The appellant specifically averred that he had not seen all the three persons in public for a long time, particularly since 4th January, 2007, when they were last seen in Amethi. He claims to have visited Amethi to verify these facts and also a couple of times thereafter. Lastly, on 12th December, 2010, he visited the place where all the three persons lived, but found the same locked. The incident was reported to various authorities, including the Chief Minister, the Home Minister, Chief Secretary of the State, Governor and the other authorities of the State. The only communication he received was from the office of the Governor wherein it was said that his application had been sent to the State Government for proper action. Invoking the right to life and liberty as enshrined under Article 21 of the Constitution of India on behalf of the three named petitioners in the writ petition and alleging that respondent No.6 would influence any fruitful investigation, the appellant prayed for issuance of a writ of habeas corpus commanding the opposite party particularly respondent No.6 to produce the petitioners before the Court and for passing any other appropriate order or direction.12. Before we refer to the events subsequent to the filing of the Writ Petition no.111/2011, it must be noticed that a person named Ram Prakash Shukla, a practising advocate at Lucknow, who claimed himself to be a human rights activist and a public spirited person had earlier instituted 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: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 Habeas Corpus commanding the respondents nos. 1 to 4 to search and produce the Ms. Sukanya Devi, her mother Smt. Sumitra Devi, her father Balram Singh as well as Videographer Mr. Drupadh and the CNN-IBN Cameramen before thisCourt.(iii) Issue a writ, order or direction in the nature of Mandamus directing the respondents nos. 5 & 6 (the Human Right Commission) and the National Commission for Women) to submit the report of the investigation if any, done by them on the complaint lodged by Ms. Sukanya Devi.(iv) Issue any other order or directions which thisCourt may deem fit and proper under the facts and circumstances of the case in favour of the petitioner in the interest of justice.(v) Allow the cost of the writ petition in favour of the petitioner.This writ petition was heard by a Division Bench of the Allahabad High Court at Lucknow and was dismissed by a detailed judgement dated April 17th, 2009. The Court specifically noticed that before passing a direction for lodging of an FIR, the Court is required to see that the pleadings are absolutely clear, specific and precise and that they make out a charge or criminal offence,, which prima facie is supported by cogent and reliable evidence and that the State machinery has failed to take appropriate action in accordance with law for no valid reason. In absence thereof, the Court cannot issue such a direction. The Court recorded its complete dissatisfaction about the correctness of the allegations made in the writ petition as they were not supported by any reliable or cogent evidence. The Court, while declining to grant the reliefs prayed for, dismissed the writ petition. The operative part of the judgment reads as underplea that the respondents may be required to inform the court, whether any such incident had taken place or not, suffice would be to mention that in the absence of clear and precise pleadings with no supporting evidence, the Court will not make any roving and fishing enquiry.The writ petition does not make any case for grant of the reliefs claimed.The writ Petition has not force, which is being dismissed.It may be noticed that Writ Petition No. 3719 of 2009 itself was instituted in the year 2009 nearly three years after the alleged news and was dismissed vide order dated 17th April, 2009. It was in the beginning of the year 2011 that the present appellant instituted Writ Petition 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 followsit is most humbly prayed that thisCourt may be pleased to1. 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 thisCourt 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.This Writ petition was listed before a Single Judge of the Allahabad High Court who, vide order dated 1st March, 2011 directed issuance of notice to respondent No.6 to submit his reply. The matter was to be listed before the Court after service of notice. During the pendency of this writ petition, respondent No. 8, Shri Gajendra Pal Singh, again acting as next friend of Sukanya Devi, Shri Balram Singh and Smt. Sumitra Devi @ Mohini Devi, all residents of Ward No.5, near Gurudwara, Town Area Amethi District, Chhatrapati Shahu Ji Maharaj Nagar, Uttar Pradesh filed Writ Petition No.125 of 2011 on 4th March, 2011 stating that a false writ petition No.111 of 2011 was filed by Shri Kishore Samrite as next friend and that it was politically motivated to harm the reputation of the opposite party. Further that Shri Kishore Samrite was neither the next friend of the petitioners in that petition nor had any interest in the liberty of those petitioners. Respondent No. 8, Shri Gajendra Pal Singh claimed to be a neighbour of Shri Balram Singh, father of Sukanya and husband of Smt. Sumitra @ Mohini Devi. According to him, when the three petitioners in Writ Petition No.125 of 2011 were not seen in their house for some time, he approached the Police Station, Amethi, to lodge a complaint but the police authorities refused to file/register the complaint on the ground that the petitioners were in custody of police as they had committed some wrong. Seeing that right to life and liberty of the petitioners was involved, he prayed for the following refliefsit is most respectfully prayed that thisCourt may kindly be pleased to :a. Issue a writ or writ order or direction in the nature of habeas corpus commanding the opposite parties to produce the petitioner before thisCourt and set them at Liberty.b. To call the record of Writ Petition No.111 H.C. of 2011 and connect with this present Writ Petition. The order passed in Writ Petition. The order passed in Writ Petition No.111 H.C. of 2011 be reviewed and recalled.c. To order the investigation by the appropriate agency.d. Issue any other order or direction which is deemed fit and proper in the present circumstances in favour of the petitioners, in the interest of justice.e. Award the cost of the petition to the petitioner.This petition was taken up by a Division Bench of the Allahabad High Court and the Court passed the following order on 4th March, 2011view of all the aforesaid, we direct 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.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 was wrong and there was no such place in the town of Amethi with the name of Medical Chowk, Sanjay Gandhi Marg and the address mentioned in Writ Petition no.125 of 2011 was the correct address of Shri Balram Singh who lived there in the past. On 3rd December, 2007, Balram Singh had sold the plot, which was in the name of his wife, Smt. Sushila Singh, to one Smt. Rekha and, thereafter he himself shifted to village Hardoia, Police Station Kumar Ganj, District Faizabad. Even the house adjacent to the plot was sold off by Balram Singh to Dr. Vikas Shukla who was residing at the said village with his entire family. It was stated that Balram Singh was living in Village Hardoia with his wife and four children, three daughters and one son. Name of their eldest daughter is Kumari Kirti Singh, aged about 21 years. She had passed her B.Sc. examination in the year 2009-2010. Balram Singh had stated to the police that he knew Gajendra Pal Singh but did not know Kishore Samrite. According to this affidavit, Balram Singh also informed the police that in the year 2006 some men claiming to be media persons had come to his house in Amethi and asked his wife after showing photograph of Sukanya Devi, if she was her daughter. Upon this, his wife produced their daughter before them and told them that the girl in the photograph was different than their daughter. Further, Balram Singh also stated to the police that they had never authorised any advocate or anybody else to institute any writ petition in the court. In this very affidavit, in regard to the incident of 3rd December, 2006, the DGP has referred to the following statement of Balram Singhhas also been stated by Sri Balram Singh that neither he nor his wife Sushila Singh nor daughter Kirti Singh has ever made any allegation either on 03.12.2006 or before or after that against Shri Rahul Gandhi or anybody else; nor any writ petition has been preferred in theHigh Court making any kind of allegations. He has never authorised any Advocate or anybody else to institute any writ petition.The Ration Card and Pan Card of Balram Singh was produced during investigation. It is also noticed that Sukanya and Kirti, the name mentioned in Writ Petition No.125 of 2011 partially matches the particulars of daughter of Balram Singh and they have no relation whatsoever to any of the next friend in either of the writ petition. Shri Balram Singh, Kumari Kirti Singh and Smt. Sushila Singh, all 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.

Reasoning: 53. Coming to the judgment of the High Court under appeal it has to be noticed that the appellant was deprived of adequate hearing by the High Court, but that defect stands cured inasmuch as we have heard of the concerned parties in both the writ petitions at length. The transfer of Writ Petition No. 111/2011 was not in consonance with the accepted canons of judicial administrative propriety. The imposition of such heavy costs upon the petitioner was not called for in the facts and circumstances of the case as the Court was not dealing with a suit for damages 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 their own. We hardly see any attributes of the Police except performance of their duties in the normal course so as to entitled them to exceptional rewards. Certainly, the reputation of respondent no.6 has also been damaged, factually and in law. Both these petitions are based on falsehood. The reputation of respondent no.6 is damaged and his public image diminished due to the undesirable acts of the appellant and respondent no.8.