Kishore Samrite vs State Of U.P. & Ors

2. Challenge to the above impugned order, inter alia, but primarily is on the following grounds :

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.

6. 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 ‘political mudslinging’. While 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.

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: -

14. 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 follows :

15. 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 refliefs :

17. The Court directed transfer of Writ Petition No.111 of 2011 and directed tagging of the same with Writ Petition No.125 of 2011, besides issuing notice to the Director General of Police, U.P. to produce the petitioners on 7th March, 2011. In Writ Petition No.125 of 2011, the Director General of Police filed a personal affidavit. According to him, the Superintendent of Police, Chhatrapati Shahu Ji Maharaj Nagar, while noticing the allegations made in both the writ petitions reported that the address mentioned in Writ Petition No.111 of 2011 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 Singh :

18. 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.

41. Thirdly, in the Writ Petition in paragraph 10, it is stated that the petitioners were last seen on 4th January, 2007 in Amethi and the appellant had not seen them thereafter. The appellant also claims in the same paragraph that the facts came to his knowledge when he, in order to personally verify the facts, visited Amethi a couple of times and also as late as in December, 2010. From this, the inference is that the petition was based upon the facts which the petitioner learnt and believed during these visits. On the contrary, when he filed an affidavit in this Court on 25th July, 2012, in paragraph 6 of the affidavit, he stated as under:

46. Having discussed the abuse of process of Court and misuse of judicial process by both the petitioners, the issue of locus standi would obviously fall within a very narrow compass. The question of locus standi would normally be a question of fact and law both. The issue could be decided with reference to the given facts and not in isolation. We have stated the facts and the stand of the respective parties in some detail. Both, the appellant and respondent No.8, had filed their respective writ petitions before the Allahabad High Court as next friends of the three petitioners whose names have not been stated with complete correctness in both the writ petitions. There has been complete contradiction in the allegations made in the two writ petitions by the respective petitioners. According to the appellant, the three stated petitioners were illegally detained by the respondent no.6 while according to the respondent no.8 they were detained by the authorities. These contradictory and untrue allegations are the very foundation of these writ petitions. It may also be noticed that in both the writ petitions, baseless allegations in regard to the alleged incident of 3rd December, 2006, involving the respondent no.6, had also been raised.

(vii) Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.

37. In light of these settled principles, if we examine the facts of the present case, next friends in both the petitions are guilty of suppressing material facts, approaching the court with unclean hands, filing petitions with ulterior motive and finally for abusing the process of the court.

39. Firstly, he filed Writ Petition No. 111/2011 on vague, uncertain and incomplete averments. In fact, he withheld the fact that the earlier Writ Petition No. 3719/2009 had been dismissed by a Division Bench of the Allahabad High Court as back as on 17th April, 2009, while he instituted Writ Petition No. 111/2011 in the year 2011. The excuse put forward by the appellant was that he did not know about the dismissal of that case. This flimsy excuse is hardly available to the appellant as he claims to be a public person (ex-MLA), had allegedly verified the facts and incidents before instituting the petition and made the desired prayers therein. It is obvious that subject matter of Writ Petition No. 3719/2009 must have received great publicity before and at the time of the dismissal of the writ petition.

Locus Standi

54. For these reasons, we are unable to sustain the order under appeal in its entirety and while modifying the judgments under appeal, we pass the following order: -

55. The appeal is disposed of in the above terms.

..…………………………J. (B.S. Chauhan) ..…………………………J. (Swatanter Kumar) New Delhi, October 18, 2012 ITEM NO.1A COURT NO.12 SECTION II (For Judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CRIMINAL APPEAL NO. 1406 OF 2012 KISHORE SAMRITE Appellant(s) VERSUS STATE OF U.P. & ORS. Respondent(s) Date: 18/10/2012 This Appeal was called on for pronouncement of Judgment today.

Hon'ble Mr. Justice Swatanter Kumar pronounced the judgment of the Bench comprising of Hon'ble Dr.Justice B.S. Chauhan and His Lordship.

The impugned judgment is modified and the appeal is disposed of in terms of the signed Judgment.

(Signed reportable Judgment is placed on the file)