GHANSHYAM UPADHYAY versus STATE OF U.P. & ORS.
[2020] 6 S.C.R. 983, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Facts
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GHANSHYAM UPADHYAY
v.
STATE OF U.P. & ORS.
(Criminal Miscellaneous Petition No. 70798/2020
In
(Writ Petition (Criminal) No. 177 of 2020)
AUGUST 19, 2020
[S. A. BOBDE, CJI, A. S. BOPANNA AND
V. RAMASUBRAMANIAN, JJ.]
Inquiry:
Commission of Inquiry – Constitution of – By Supreme Court
– To investigate the alleged encounter of ‘Vikas Dubey’ – Application
by the petitioner seeking scrapping of the Commission alleging
‘conflict of interest’ and ‘bias’ against the two of the members of the
Commission – Held: The basis for allegation was newspaper report
– The newspaper report without further proof has no evidentiary
value – The present case is a fact-finding exercise – The Commission
has been constituted under Commissions of Inquiry Act, which is
empowered merely to investigate, record its findings and make its
recommendations – The recommendations are not enforceable
proprio vigore – There would be sufficient safeguard to the manner
in which the inquiry would be held.
Dismissing the application, the Court
HELD: 1.1. The entire basis for making the allegations as
contained in the miscellaneous petition is an Article relied on by
the petitioner said to have been published in the newspaper.
There is no other material on record to confirm the truth or
otherwise of the statement made in the newspaper. This Court
will have to be very circumspect while accepting such contentions
based only on certain newspaper reports. The newspaper item
without any further proof is
of no evidentiary value. [Para 6]
[987-F-G]
Kushum Lata v. Union of India & Ors. (2006) 6 SCC
180 : [2006] 3 Suppl. SCR 462; Rohit Pandey v. Union
of India (2005) 13 SCC 702 – relied on.
[2020] 6 S.C.R. 983
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[2020] 6 S.C.R.
1.2  In the instant case, the Chairman and a Member of the
Commission had held high Constitutional positions and while
making allegations, the petitioner has based his claim only on
the newspaper report and the manner in which the averments
are made in the application is unacceptable. In any case, the
allegation that the brother of the chairman of the Commission is
a legislator belonging to or supporting the party in power and
that the member of the Commission is related to the IG of Police
are not sufficient to come to the conclusion that it would lead to
bias or conflict of interest since there is no indication whatsoever
as to the nature of influence such of those relatives would be
able to exert and as to whether they are in a dominant position.
[Paras 8-9][988-C-E]
1.3 In the present case, the Petitioner is a lawyer by
profession who practices in Mumbai and has come up by way of
Public Interest Litigation. Therefore, the allegations of bias made
by him against the members of the Commission merely on the
basis of newspaper reports and nothing more, are liable to be
rejected outright. [Para 14][989-H; 990-A]
Ranjit Thakur v. Union of India & Ors. (1987) 4 SCC
611 : [1988] 1 SCR 512 – distinguished.
K. Vijaya Bhaskar Reddy v. Government of Andhra
Pradesh, AIR 1996 AP 62 – referred to.
2. The Court is dealing here with an Inquiry Commission
constituted under the Commissions of Inquiry Act, 1952 whose
functions and
role are by now well defined. A Commission
constituted under the Commissions of Inquiry Act  is empowered
merely to investigate, record its findings and make its
recommendations. These recommendations are not enforceable
proprio vigore. The proceedings in the present case are not an
inter se determination of legal issues between the parties but a
fact-finding exercise. The petitioner herein is an advocate who
practices law in Mumbai, Maharashtra and is in no way connected
to the incident in question which took place in U.P. However, the
petition filed by him in public interest was accepted and the
Commission of Inquiry consisting of persons who had held high
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position has been constituted.  The enquiry held would be in public
domain and the petitioner has already been granted the liberty of
participating therein. The report of the enquiry is ordered to be
filed in the petitions which were filed before this Court. Therefore,
there would be sufficient safeguard to the manner in which the
inquiry would be held. The petitioner has been raising
unnecessary apprehensions and repeated applications are being
filed which in fact is hampering the process of inquiry. [Paras 10
and 15][988-F-G; 990-C-E]
Ram Krishna Dalmia v. Justice S. R. Tendolkar [1959]
SCR 279; State of Karnataka v. Union of India (1977)
4 SCC 608 : [1978] 2 SCR 1; Sham Kant v. State of
Maharashtra (1992) 2 Suppl. SCC 521 – relied on.
Case Law Reference
[2006] 3 Suppl. SCR 462
relied on
Para 6
(2005) 13 SCC 702
relied on
Para 7
[1959] SCR 279
relied on
Para 10
[1978] 2 SCR 1
relied on
Para 10
(1992) 2 Suppl. SCC 521
relied on
Para 10
AIR 1996 AP 62
referred to
Para 11
[1988] 1 SCR 512
distinguished
Para 15
CRIMINAL ORIGINAL JURISDICTION: CRL.M.P. No.
70798/2020 in Writ Petition (Criminal) No. 177 of 2020.
Under Article 32 of the Constitution of India
Tushar Mehta, SG, K.M. Nataraj, ASG, Ms. Garima Prashad,
Prashant Singh, Shiv Nath Tilhari, Rajat Nair, Kanu Agrawal, Arvind
Kumar Sharma, Ms. Aparna Bhat, Ms. Anupama Ngangom, Advs. for
the appearing parties.
Petitioner-in-person.
GHANSHYAM UPADHYAY v. STATE OF U.P. & ORS.
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The following Order of the Court was passed:
O R D E R
1. The petitioner in this Criminal Miscellaneous Petition/application
is the petitioner in W.P (Crl.) No.177/2020. The said writ petition was
filed under Article 32 of the Constitution of India, in the nature of public
interest seeking for issue of Writ of Mandamus and direct the respondent
Nos.1 to 3 in the writ petition to initiate action with regard to the
destruction of  residential building and other properties of accused –
Vikas Dubey and to safeguard the life of the accused. Before the petition
was taken up for consideration certain other developments had occurred,
inasmuch as the said Vikas Dubey was killed by the police in an alleged
encounter. Along with the said writ petition, certain other writ petitions
which were also filed in public interest seeking for an appropriate enquiry
in that regard were tagged. All the related writ petitions were taken up
for consideration together. The State Government in a reply filed to the
said writ petitions, apart from referring to the other aspects of the matter
had also indicated that the Government having taken serious cognizance
of all the events, apart from constituting a Special Investigation Team
had also constituted a Commission of Inquiry under the Commission of
Inquiries Act, 1951 headed by a former Judge of Allahabad High Court.
In that regard it is to be noted that Shri Justice Shashikant Agrawal, a
former
Judge had been appointed.
2. In the course of the proceedings before this Court, based on a
suggestion made by this Court, the State Government had undertaken
the exercise to expand the composition of the Commission. Accordingly,
in addition to the former High Court Judge who had been appointed the
State Government suggested the name of Dr. Justice B.S. Chauhan, a
former Judge of this Court to be the Chairman and Mr. K.L. Gupta, IPS,
Former Director General of Police to be a Member. This Court having
considered it appropriate had through the order dated 22.07.2020 accepted
the constitution of the Commission of Inquiry in the said manner and the
writ petition was directed to be listed along with the report of the
Commission. The petitioners were also granted the liberty of applying to
the Inquiry Commission to be heard in the matter.
3. When this is the position the instant criminal miscellaneous
petition is filed by the petitioner seeking that the Judicial Commission
constituted by the State be scrapped and a SIT as sought by the petitioner
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be constituted by this Court to carry out investigation on all issues raised
by the petitioner. The said prayer is made by the petitioner alleging conflict
of interest and likely bias on the part of the Chairman, Dr. Justice B.S.
Chauhan and Shri K.L. Gupta, the Member. The petitioner in that regard
has relied upon an Article published in “The Wire” dated 29.07.2020.
4. We have heard the petitioner-in-person and perused the petition
papers.
5. At the outset it is necessary to notice that the petitioner herein
had filed the applications in I.A. No.68207/2020 and I.A. No.67940/
2020 after the constitution of the Inquiry Commission raising certain
objections with regard to Shri K.L. Gupta being the Member of the
Commission since according to the petitioner he had made certain
comments in favour of the police in the interview given to the media.
This Court having considered the same and on not finding it objectionable,
dismissed the application through the order dated 28.07.2020 holding the
application to be devoid of merits. Despite the same, the very same
contentions are urged in the instant application as well and has also
raised an additional contention that the said Shri K.L. Gupta is related to
Shri Mohit Agarwal, the IG of Kanpur Zone. Further, objection is raised
to the continuation of Dr. Justice B.S. Chauhan as the Chairman of the
Commission since the news report relied on by the petitioner states that
his brother and relative are legislators from
the Bhartiya Janata Party
which runs the Government in Uttar Pradesh.
6. As noted, the entire basis for making the allegations as contained
in the miscellaneous petition is an Article relied on by the petitioner said
to have been published in the newspaper. There is no other material on
record to confirm the truth or otherwise of the statement made in the
newspaper. In our view this Court will have to be very circumspect
while accepting such contentions based only on certain newspaper reports.
This Court in a series of decisions has repeatedly held that the newspaper
item without any further proof is of no evidentiary value. The said principle
laid down has thereafter been taken note in several public interest
litigations to reject the allegations contained in the petition supported by
newspaper report. It would be appropriate to notice the decision in the
case of Kushum Lata vs. Union of India & Ors. (2006) 6 SCC 180
wherein it is observed thus, “…. It is also noticed that the petitions
are based on newspaper reports without any attempt to verify their
authenticity. As observed by this Court in several cases, newspaper
GHANSHYAM UPADHYAY v. STATE OF U.P. & ORS.
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reports do not constitute evidence. A petition based on unconfirmed
news reports, without verifying their authenticity should not normally
be entertained.  As noted above, such petitions do not provide any
basis for verifying the correctness of statements made and
information given in the petition.”
7. This Court in the case of Rohit Pandey vs. Union of India
(2005) 13 SCC 702 while considering the petition purporting to be in
public interest filed by a Member of the Legal Fraternity had come down
heavily on the petitioner since the said petition was based only on two
newspaper reports without further verification.
8. In the above backdrop, in the instant case it is to be noticed that
the Chairman and a Member of the Commission had held high
Constitutional positions and while making allegations the petitioner has
based his claim only on the newspaper report and the manner in which
the averments are made in the application is unacceptable.
9. In any case, the allegation that the brother of the chairman of
the Commission is a legislator belonging to or supporting the party in
power and that the member of the Commission is related to the IG of
Police (Kanpur Range) are not sufficient to come to the conclusion that
it would lead to bias or conflict of interest since there is no indication
whatsoever as to the nature of influence such of those relatives would
be able to exert and as to whether they are in a dominant
position.
10. It must be remembered that we are dealing here with an Inquiry
Commission constituted under the Commissions of Inquiry Act, whose
functions and role are by now well defined. As held by the Constitution
Bench in Ram Krishna Dalmia vs. Justice S. R. Tendolkar, 1959
SCR 279, a commission constituted under the Commissions of Inquiry
Act, 1952 is empowered merely to investigate, record its findings and
make its recommendations. These recommendations are not enforceable
proprio vigore. The view taken in Ram Krishna Dalmia, was
reinforced by a larger bench in State of Karnataka vs. Union of India,
(1977) 4 SCC 608. In fact, this Court went in Sham Kant vs. State of
Maharashtra, 1992 Suppl. (2) SCC 521, to the extent of holding that
the findings of the Inquiry Commission are not binding on the Court,
while dealing with an appeal arising out of conviction and sentence of a
police officer. The police officer who was the appellant before this Court
in the said case sought to rely upon the findings of the Inquiry Commission
that the victim of custodial violence could have sustained injuries prior to
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his arrest. But this Court refused to rely upon the findings of the Inquiry
Commission to overturn the conviction of the police officer.
11. In K. Vijaya Bhaskar Reddy vs. Government of Andhra
Pradesh, AIR 1996 AP 62, a Division Bench of the Andhra Pradesh
High Court had an occasion to deal with the challenge to the appointment
of a one-man Commission of Inquiry under the Commissions of Inquiry
Act, 1952. One of the grounds of challenge was bias on the part of the
appointee. After pointing out that bias by interest which disqualifies a
Judge, may fall into two broad classes namely, (i) bias arising out of
pecuniary interest, and (ii) bias arising out of personal interest in the
outcome, on account of the Judge’s relationship with one of the parties,
the Division Bench of the Andhra Pradesh High Court quoted Massey
from his Treatise on Administrative Law to the following effect:
“personal bias arises from a certain relationship equation between
the deciding authority and the parties which incline him
unfavourably or otherwise on the side of one of the parties before
him”.
12. Though a contention was raised in K. Vijaya Bhaskar Reddy
that the principle has no application to the proceedings before an Inquiry
Commission, which are basically inquisitorial and not judicial or quasi-
judicial or adversarial, the Division Bench of the Andhra Pradesh High
Court held that the duty to act fairly and impartially flowed out of the
principles of natural justice.
Therefore, the Andhra Pradesh High Court
upheld the right of the petitioner therein to raise the plea of bias. However,
the Court held that to sustain a plea of reasonable apprehension of bias,
(i) there must be cogent, uncontroverted and undisputed material, and
(ii) the court cannot go by vague, whimsical and capricious suspicion.
Applying these principles, the Andhra Pradesh High Court rejected the
challenge made by a former Chief Minister of the state, to the appointment
of a retired Judge as one-man Commission to inquire into certain alleged
irregularities committed by him while in office.
13. Thus, even in a case where the petitioner before the Court
was a person against whom the Commission of Inquiry was constituted,
the Court applied strict standards, for testing the allegation of personal
bias against the Inquiry Commission.
14. In the case on hand, the Petitioner is a lawyer by profession
who practices in Mumbai and has come up by way of Public Interest
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Litigation. Therefore, the allegations of bias made by him against the
members of the Commission merely on the basis of newspaper reports
and nothing more, are liable to be rejected outright.
15. The petitioner has relied on the decision of this Court in the
case of Ranjit Thakur vs. Union of India & Ors. (1987) 4 SCC 611 to
contend that this Court held that the Likelihood of bias in the mind of the
party would be sufficient to complain. The facts in the said case led to
such conclusion inasmuch as the nature of involvement of respondent
No.4 in punishing the appellant in that case and thereafter participating
lead to bias and that position was accepted. The facts involved herein
are entirely different. The proceedings herein are not an inter se
determination of legal issues between the parties but a fact-finding
exercise. The petitioner herein is an advocate who practices law in
Mumbai, Maharashtra and is in no way connected to the incident in
question which took place in U.P.  However, the petition filed by him in
public interest was accepted and the Commission of Inquiry consisting
of persons who had held high position has been constituted. The enquiry
held would be in public domain and the petitioner has already been granted
the liberty of participating therein. The report of the enquiry is ordered
to be filed in the petitions which were filed before this Court.  Therefore,
there would be sufficient safeguard to
the manner in which the inquiry
would be held.  We find that the petitioner has been raising unnecessary
apprehensions and repeated applications are being filed which in fact is
hampering the process of inquiry.
16. For all the aforestated reasons we are of the opinion that the
instant petition/application is without any merit and the same is accordingly
dismissed.
Kalpana K. Tripathy
Petition/Application dismissed.