IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH, LUCKNOW.
Writ Petition No. 3969 (M/B) of 2005
Dr. Subramanian Swamy
Petitioner
The Election Commission of India and others
Respondents.
Petitioner –in- person & R.A.Shankdhar
Dr Ashok Nigam
Hon’ble Jagdish Bhalla, J.
Hon’ble Dharam Veer Sharma, J.
Dated: 12 /1/2007
JUDGMENT:-
(Delivered by Hon. Dharam Veer Sharma, J.)
The petitioner informs that before filing of this writ petition, he had filed a petition in the Hon’ble Apex Court bearing writ petition No.C-89 of 2005, Dr. Subramanian Swamy Vs. Election Commission of India & others and the same was dismissed in-limine on 11.04.2005 and accordingly the instant writ petition has been preferred under Article 226 of the Constitution of India.
The conspectus of the facts are as under:-
The petitioner is a nationally known public figure, active in politics and public affairs. He is deeply concerned with the protection of the Rule of Law and the enforcement of the statutory duty of the concerned departments of the Central Government as well as purity in public life. In this regard, he has brought several cases, pro bono, to the notice of the Courts. He holds doctorate in Economics from the world famous Harvard University in the U.S.A., where he had also taught and still occasionally teaches Economics for over a decade. He has also taught Economics at the Indian Institute of Technology in Delhi, as a Professor. He is responsible and senior politician, a member of Parliament for five terms and has served as a member of several Parliamentary Standing Committees. Petitioner was also a Senior Cabinet Minister holding the portfolios of Commerce and Law & Justice (1990-91). Thereafter he held the post of Chairman of the Commission of Labour Standard, a post of Cabinet Rank. He regards the present litigation as a duty he owes to his country. Respondent no.3 occupies a very high place in India, being the Leader of the Congress Party in Lok Sabha and is also the President of the All India Congress.
It is alleged that on 3.04.2004 in terms of the directions, respondent no. 3 filed an affidavit (annexure-2) before the Returning Officer of Raibareilly Constituency from where she had decided to context the Parliamentary election, and in the process, she indicated her educational qualification as under:-
i. Three years course in foreign languages (English and French) completed in 1964 at Institute Santa Teresa, Via Santra Teresa, 10 Turin
ii. Certificate in English from Lennox Cook School, University of Cambridge, completed in 1965.
The petitioner claims that the information is false and he could come to know about the same through media. The petitioner made a representation (annexure-3) to the Chief Election Commissioner. Thereafter on 1.7.2004, respondent no.1 forwarded the complaint to the Returning Officer concerned for proper action. Respondent no.2 thereafter fixed a date 8.10.2004 for personal meeting. The petitioner submitted written submissions (annexure-8) annexing therewith copies of following documents:-
i. the affidavit sworn by the respondent no.3 inter alia falsely claiming her educational qualifications
ii. three letters from the University of Cambridge, stating that the there is no record of respondent no.3 as having registered as a student at the University.
iii. the respondent no.3 had published in the “Who’s Who” of the Thirteenth Lok Sabha, wherein she had earlier stated that she was “educated at Cambridge University in U.K.”
iv. the letter of the petitioner to the Speaker of the Thirteenth Lok Sabha,
v. the Lok Sabha has confronted the respondent no.3 with the above falsehood and that officials of the respondent no.3 had explained it away by stating that the word “University” in the Lok Sabha publication was “typographical error”.
Thus it is contended that the respondent no.3 was persisting in her false statement of educational qualifications, amounting to commission of offences under Sections 177, 181 and 191 read with section 193 of the Indian Penal Code. Thereafter the petitioner pursued the matter at the level of Chief Election Commissioner, respondent no.1 and met with all the three Election Commissioners. On 12.01.2005, respondent no.1 wrote to the respondent no.2 (annexure-13) directing that a copy of the order may be furnished to the petitioner. On 19.01.2005, the petitioner received a registered post letter dated 15.01.2005 from respondent no.1 enclosing a copy of an order dated 23.10.2004 (annexure P-1) passed by respondent no.1 rejecting the petitioner’s application. For convenience, it is reproduced as under:
“Dr. Subramanian Swami, President, Janata Party filed an application against Ms. Sonia Gandhi stating that she filed a false affidavit in 2004 General Election to Lok Sabha. The application was submitted by Sri H.A.Shankhdhar, President, Janta Party, Uttar Pradesh. Alongwith the application xerox of letter dated 1st July, 2004 of Election Commission of India was enclosed which mentioned that such complaints should be filed before Returning Officer along with documentary evidence.
The applicant was given an opportunity of personal hearing on 8th October, 2004. Heard the applicant and perused the documents submitted. The main contention of applicant is that Ms. Sonia Gandhi had wrongly mentioned in affidavit about her education at Lennox Cook School, University of Cambridge, U.K. The applicant had attached a xerox copy of affidavit filed, xerox letters from one Mr. David McCarthy addressed to Mr. Jai Kumar and Mr. B.Rathor (no details of identity mentioned) dated November 2001 and transcripted copy of letter from one Dr. E.S.Leedhan-Green addressed to Mr. A. Ghosh (no details of identity mentioned) dated September 1992.
The applicant had claimed that Ms. Sonia Gandhi had willfully made a false declaration on oath to mislead the voters about her high educational qualification.
The application and accompanying documents were carefully examined by me. The applicant has not filed any affidavit nor has any personal knowledge about this matter. It is note worthy that Ms. Sonia Gandhi has filed a sworn affidavit regarding which no complaint was received at the time of election. Moreover, in her affidavit she has simply mentioned “Certificate in English from Lennox Cook School, Cambridge University, completed in 1965” which is a course in English language proficiency and not about any degree or advanced educational qualification, hence the argument of misleading the voters about high educational qualification is not tenable. Transcript copy of letter of Dr. Leedham-Green along with application itself mentions that she has studied in a language school in Cambridge. Since there is no documentary evidence or any other evidence to support the application, therefore, it is rejected.
According to the petitioner, the above order makes no finding at all on the petitioner’s complaint i.e. whether the respondent no.3 had willfully made a false declaration on oath, but it holds that “the argument of misleading voters about high educational qualification” is not tenable. Thereafter on 19.01.2005, the petitioner wrote a letter to the respondent no.1 enquiring whether an appeal lay, to which respondent no.1 replied that no appeal lay to the Election Commission.
The petitioner filed petition C-89 of 2005 before the Hon’ble Apex Court, challenging the aforesaid order dated 23.10.2004 passed by the Returning Officer for 19-Raebareli Parliamentary Constituency. By its order dated 11.04.2005 (annexure-18) the Hon’ble Apex Court dismissed the same. The order reads as under:-
“Upon hearing counsel the Court made the following:
O R D E R
Heard.
The writ petition is dismissed.”
The petitioner claims that the respondent nos.1 and 2 are not carrying out their statutory duties, to the detriment of the public interest and Rule of Law. It affects purity in public life and is brazenly violative of Article 14 of the Constitution of India.
Being aggrieved by the aforesaid inaction and the order dated 15.1.2005 the petitioner is approaching this Court under Article 226 of the Constitution of India on the following grounds:
1. The impugned order dated 15.1.2005 passed by respondent no.2 is bad, illegal and arbitrary.
2. The Returning Officer has rejected the petitioner’s application merely for want of an affidavit by the petitioner without calling for the same.
3. The offence made out against the respondent no.2 is not a trivial, but in fact, the gravamen of the offence is two fold-
1. It is a contempt of the law and of the sanctity of an affidavit and it amounts to a violation not only of the India Panel Code and the Representation of the People Act, 1951, but also of the directions and safeguard laid down by this Court.
2. The voter has a right to information on the educational qualifications of a candidate to enable him to make the correct choice of his representative.
D. The petitioner by himself can not approach the Court with a complaint of a perjury against respondent no.3 because of the terms of Section 195 of the Code of criminal Procedure 1973.
Accordingly the petitioner is helpless to proceed unless a direction is given to the respondents no.1 and 2 to proceed in the matter. The attitude and inaction of the concerned respondents is violative of article 14 of the Constitution and the Rule of Law and the only remedy left is a public interest litigation to invoke the powers of the High Court, to ensure that law is properly enforced and the investigation/prosecuting agencies perform their duties according to law. The Hon’ble Apex Court has so held in a catena of decisions notably in the cases of the Vineet Narain (1996) 2 SCC 199, Anukul Chandra Pradhan (1996) 6 SCC 354 and Sushil Kumar Modi (1997) 4 SCC 770.
E. The respondents no.1 and 2 have overlooked the ratio laid down by the Hon’ble Apex Court in the case of Union of India Vs. Association for Democratic Reforms (2002) 5 SCC 294.
6. The respondents no.1 and 2 have acted in sheer disregard in ensuring free, fair and impartial elections.
Consequently, the impugned order dated 23.10.2004 passed by respondent no.2 (annexure 1) is liable to be quashed and a direction in the nature of mandamus commanding respondents 1 and 22 to formally institute a complaint case before the competent court against the respondent no.3, be issued.
Thereafter the petitioner filed a copy of petition No.C-89 of 2005 filed before Hon’ble the Supreme Court of India (annexure P-14), the order dated 23.10.2004, referred to above, was also filed and prayed for a direction in the nature of mandamus directing the respondent no.1, the Election Commission of India through its Secretary and respondent no.2 the District Election Officer/District Magistrate to file a formal complaint before the court concerned and also to pass an order laying down direction providing for recourse in case the Returning Officer refuses to file such complaint.
Thus, to sum up both the petitions, the impugned order dated 23.10.2004 (annexure-1 to the writ petition) is under fire and the petitioner claims its quashing and further seeks a direction for lodging a complaint against respondent no.3.
We have heard the petitioner in person and Dr. Ashok Nigam, Senior Advocate appearing for the respondents.
On behalf of respondent No.1, it has been argued with vehemence that the instant petition as ‘Public Interest Litigation’ is not maintainable as the same has been registered as Misc. writ petition and even if for arguments’ sake it is treated as a Public Interest Litigation, still the petition could not be maintainable as per norms and parameters set for maintaining a ‘Public Interest Litigation’ by the Hon'ble Supreme Court. The petitioner does not have locus to file the same even as a Public Interest Litigation for the following reasons:-
1. While making exception to the general law of locus standi in a Public Interest Litigation, the Hon’ble Supreme Court has laid down certain norms when such a petition can be entertained without the petitioner being personally affected and to what limit can requirement of locus be expanded and has also mandated that when it should not be maintainable.
2. Public Interest Litigation can only be filed for espousing the cause of others when and only when the persons aggrieved are unable to approach the Court directly by reasons of object poverty or lack of means or being socially disadvantaged and backward. Thus those who are unable to knock the door of the Court themselves for lack of sources and means can file Public Interest Litigation, but in this case the aggrieved person i.e. the rival candidates and their respective political parties as well as the electors of Raebareli, do not fall within the above ambit.
Learned counsel for respondent No.1 has vehemently argued that in view of the decision of the Hon’ble Apex Court in Gauruvayoor Devaswom Managing Committee and another Vs. C.K. Rajan and others, (2003) 7 SCC, 546, the petition as Public Interest Litigation is not maintainable. The relevant paragraphs 41,46,50,61 and 67 are quoted as below:-
41. The courts exercising their power of judicial review found to their dismay that poorest of the poor, the depraved (sic), the illiterate, the urban and rural unorganized labour sector, women, children, those handicapped by “ignorance, indigence and illiteracy” and other downtrodden persons have either no access to justice or had been denied justice. A new branch of proceedings known as “social action litigation” or “public interest litigation” was evolved with a view to render complete justice to the aforementioned classes of persons. It expanded its wings in course of time. The courts in pro bono publico granted relief to inmates of prisons, provided legal aid, directed speedy trials, maintenance of human dignity and covered several other areas. Representative actions, pro bono publico and test litigations were entertained in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass real issues on merits by suspect reliance on peripheral procedural shortcomings. (see Mumbai Kamgar Sabha V. Abdulbhai Faizullabhai, (1976) 3 SCC 832.)
46. But with the passage of time, things started taking different shapes. The process was sometimes abused. Proceedings were initiated in the name of public interest litigation for ventilating private disputes. Some petitions were publicity-oriented.
50. The principles evolved by this Court in this behalf may be suitably summarized as under:
(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.
The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfil its constitutional promises. (See S.P.Gupta V. Union of India, 1981 Supp SCC 87, People’s Union for Democratic Rights V. Union of India, (1982) 2 SCC 494, Bandhua Mukti Morcha V. Union of India and Janata Dal V. H.S.Chowdhary, (1992) 4 SCC 305.)
(ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis-à-vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. (See Charles Sobraj V. Supdt., Central Jail, 1978, 4 SCC 104 and Hussainara Khatoon (I) V. Home Secy., State of Bihar, 1980, 1 SCC 81.)
(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial.
In Maneka Sanjay Gandhi V. Rani Jethmalani, 1979, 4 SCC 167 it was held: (SCC p.169, para 2)
“2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.”
(See also Dwarka Prasad Agarwal V. AB.D.Agarwal, (2003) 6 SCC 230)
(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [see Fertilizer Corpn. Kamgar Union (Regd.) V. Union of India, 198, 1 SCC 568, S.P. Gupta, People’s Union for Democratic Rights, D.C.Wadhwa(Dr) V. State of Bihar, 1987, 1 SCC 378 and BALCO Employees’ Union (Regd.) V. Union of India, (2002) 2 SCC 333].
(v) When the Court is prima facie satisfied aqbout variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition. (See Bandhua Mukti Morcha).
(vi) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case. [See Rural Litigation and Entitlement Kendra V. State of U.P, 1989 Supp (1) SCC 504 and Forward Construction Co. V. Prabhat Mandal (Regd.), (1986) 1 SCC 100].
(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi V. Union of India, 1989 Supp (1) SCC 251.
(viii) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (see Shivajirao Nilangekar Patil V. Dr. Mahesh Madhav Gosavi, (1987) 1 SCC 227.
(ix) The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such Committee. (See Bandhua Mukti Morcha, Rakesh Chandra Narayan V. State of Bihar, 1989 Supp(1) SCC 644 and A.P. Pollution Control Board V. Prof. M.V.Nayudu, (1999) 2 SCC 718.)
In Sachidanand Pandey V. sTate of W.B., (1987) 2 SCC, 295 this Court held: (SCC pp.334-35, para 61)
“61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to one in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants.”
In Janata Dal V. H.S.Chowdhary, (1992) 4 SCC 305 this Court opined: (SCC p.348, para 109)
“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 of 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 Court will not ordinarily transgress into a policy. It shall also take utmost care not to transgress its jurisdiction while purporting to protect the rights of the people from being violated.
In Narmada Bachao Andolan V. Union of India, (2000) 10 SCC 664 it was held: (SCC pp.762-63, paras 229 & 232)
“229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them.
232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The court has come down heavily whenever the executive has sought to impinge upon the court’s jurisdiction.”
(x) The Court would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, they do not have a power akin to Article 142 of the Constitution of India.
(ix) Ordinarily, the High Court should not entertain a writ petition by way of public interest litigation questioning the constitutionality or validity of a statute or a statutory rule.
52. This Court in BALCO Employees’ Union (Regd.) succinctly opinied: (SCC pp. 3767-77, paras 77-80).
“77. Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress were required to be espoused. PIL was not meant to be adversarial in nature and was to be cooperative and collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than what words themselves said viz. ‘litigation in the interest of the public’.
78. While PIL initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres. Prof. S.B. Sathe has summarized the extent of the jurisdiction which has now been exercised in the following words:
‘PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive:
____ Where the concerns underlying petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates).
____Where the affected person belong to the disadvantaged section of society (women, children, bonded labour, unorganized labour etc.)
¬¬¬¬¬_____Where judicial law –making is necessary to avoid exploitation (inter-country adoption, the education of the children of the prostitutes).
_____Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievance redressal forums).
_____Where administrative decisions related to development are harmful to the environment and jeopardize people’s right to natural resources such as air or water.’
79. There is, in recent years, a feeling which is not without any foundation that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counterproductive.
80. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public-spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the court for relief. There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to reemphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and re-emphasize the same.”
58. We have also not come across any case so far where the functions required to be performed by statutory functionaries had been rendered redundant by a court by issuing directions upon usurpation of statutory power. The right of a person belonging to a particular religious denomination may sometimes fall foul of Articles 25 and 26 of the Constitution of India. Only whence the fundamental right of a person is infringed by the State an action in relation thereto may be justified. Any right other than the fundamental rights contained in Articles 25 and 26 of the Constitution of India may either flow from a statute or from the customary laws. Indisputably, a devotee will have a cause of action to initiate an action before the High Court when his right under statutory law is violated. He may also have a cause of action by reason of action or inaction on the part of the State or a statutory authority; an appropriate order is required to be passed or a direction is required to be issued by the High Court. In some cases, a person may feel aggrieved in his individual capacity, but the public at large may not.
61. In State of W.B. V. Nuruddin Mallick, (1998) 8 SCC 143 it has been held: (SCC pp. 152-53, para 28)
“28. it is not in dispute in this case that after the management sent its letter dated 6-8-1992 for the approval of its 31 staff viz. both teaching and non-teaching staff, both the District Inspector of Schools and the Secretary of the Board sought for certain information through their letters dated 21-9-1992. Instead of sending any reply, the management filed the writ petition in the High Court, leading to passing of the impugned orders. Thus, till this date the appellant authorities have not yet exercised their discretion. Submission for the respondents was that this court itself should examine and decide the question in issue based on the material on record to set at rest the long-standing issue. We have no hesitation to decline such a suggestion. The courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be inappropriate for the Court to substitute itself for the statutory authorities to decide the matter.”
67. Mr. Subbao Rao referred to N.M.Thomas for the proposition that court is also a “State” within the meaning of Article 12 but that would not mean that in a given case the court shall assume the role of the executive government of the State. Statutory functions are assigned to the State by the legislature and not by the court. The court while exercising its jurisdiction ordinarily must remind itself about the doctrine of separation of powers which, however, although does not mean that the court shall not step in any circumstance whatsoever but the court while exercising its power must also remind itself about the rule of self-restraint. The court, as indicated hereinbefore, ordinarily is reluctant to assume the functions of the statutory functionaries. It allows them to perform their duties at the first instance.
Learned Counsel for the respondents has also placed reliance on a decision of Hon’ble Apex Court in Janata Dal Vs. H.S.Chowdhary and others (1992) 4 SCC 305 wherein the Hon’ble Supreme Court has laid down the criteria for entertaining PIL, which reads as under:-
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 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.”
It has further been urged that the tenor of the petition leaves no room for doubt that the instant writ petition has been preferred by the petitioner with extraneous motivation or for glare of publicity break the queue muffing his face by wearing the mask of Public Interest Litigation. The petition is frivolous and it is a criminal waste of valuable time of the Courts. Accordingly, it is not maintainable. Elaborating his arguments, learned Counsel stated that in Dattaraj Nathuji Thaware, Appellant V. State of Maharashtra and others, AIR 2005 Supreme Court 540 the Hon’ble Supreme Court has laid emphasis that PIL should be used for delivering social justice to the citizens. In other words, it should be exercised for redressal of genuine public wrong or public injury but at the same it should not be allowed to abused for oblique considerations or improper motives. It would be used to reproduce paragraphs 8,9,11 and 12 of the above referred case:-
8. 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 the 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 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, detenue expecting their release from the 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, the busy bodies, 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 extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filling 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 the genuine litigants and resultantly they lose faith in the administration of our judicial system.
9. 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 armory of law for delivering social justice to the 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 publicity oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of 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 judical process either by force of habit or from improper motives, and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
11. 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 information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike 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 imposters 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.
12. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra V. Prabhu (1994 (2) SCC 481), and Andra Pradesh State Financial Corporation V. M/s. GAR Re-Rolling Mills and Anr., (AIR 1994 Screening Committee 2151). No litigant has a right to unlimited draught on the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K.Subbarao V. Mr. K.Parasaran, 1996 (7) JT 265). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.
Learned counsel for the respondents has placed reliance on the decision of the Hon’ble Apex Court in Sampat Singh and others Vs. State of Haryana and others, (1993) 1 SCC 561. Relevant paras 5 and 6 are reproduced as under:-
5. These petitioners were not at all parties to the earlier proceedings at any stage. Hence, notwithstanding the above submission, we unreservedly hold that these petitioners have no locus standi to approach this Court for the reliefs sought for in this petition. In this connection, reference may be made to the decisions of this Court in Janata Dal V. H.S.Chowdhary, (1992) 4 SCC 305 and Simaranjit Singh Mann V. Union of India, (1992) 4 SCC 653. The copies of the affidavit of Dharam Pal and the order of the Magistrate, discharging the accused have been produced before us. We also sent for the file, containing the said affidavit and discharge orders and perused the same.
6. Though it is true that Dharam Pal who appeared before this Court supporting the case of the State of Haryana in Civil Appeal N0.5412 of 1990 with full vigour, appears to have suddenly reversed back from his earlier stand and given an affidavit withdrawing his allegations. The question whether the offering of the post of Chairman of Khadi Board of Haryana as a quid pro quo for tendering the affidavit or not, does not fall within our province in the present proceeding. Further we do not like to express any opinion on his conduct except observing that the Court should not be indirectly used as an instrumentality by anyone to attain or obtain any beneficial achievement which one could not get through normal legal process and that if anyone approaches the Court with ulterior motive, designed to wrench some personal benefit by putting another within the clutches of law and using the Court as a devise only for that end but not to get any legal remedy, then in such a situation the Court should heavily come upon such a person and see that the authority of the Court is not misused. Neither the State nor the complainant, Dharam Pal has challenged the order of the Magistrate discharging the accused, presumably for the reasons that the police has closed the investigation and sent its cancellation report and that Dharam Pal has expressed his desire in his affidavit not to probe into the allegations. We have gone through the entire file as well as the order of the Magistrate. Except observing that the complainant who initiated the law into motion alleging serious allegations against Ch. Bhajan Lal who was then holding a Cabinet rank in the Central Government, may become liable for criminal and civil liability in case the allegations are not proved. Whatever might have been the motive of Dharam pal for withdrawal of his complaint, he, after having fought the case up to this Court in quashing proceedings cannot have any justification in requesting the investigating officer not to probe into the allegations and staging 'walk out’ of the Court. On the other hand, he ought to have submitted to the discipline of the Court, especially when he has initiated the proceedings as a public interest litigant.
On the strength of the aforesaid pronouncements, it is urged that the petitioner has no locus- standi to approach the Court claiming it to be as Public Interest Litigation. It has further been urged that in this case, the petitioner is an outsider to the election proceedings in the Raebareli constituency as he was neither an elector nor was a contestant, accordingly it is not possible for him to proceed under the Representation of Peoples Act, 1951 (hereinafter referred to as the Act).
After hearing the rival submissions of the parties, it appears that the sum and substances of the arguments of the respondents is that the petition styled as Public Interest Litigation is nothing but a camouflage to foster personal disputes, accordingly the said petition is to be thrown out. It is necessary to take note of the meaning of the expression “public interest litigation”. In Stroud’s Judicial Dictionary, Vol. 4, 4th Edn., “Public interest” is defined thus:
“Public interest.-(1) A matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement; but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.”
In Black’s Law Dictionary, 6th Edn., “public interest” is defined as follows:
“Public interest.- Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national Government.
In Janata Dal Case (1992) 4 SCC 305: 1993 SCC (Cri) 36 the Apex Court considered the scope of public interest litigation. In para 53 of the said judgment, after considering what is public interest, the Court has laid down as follows: (See p.331)
“53. The expression ‘litigation’ means a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression ‘PIL’ means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.”
In paras 60,61 and 62 of the said judgment, it was pointed out as follows: (See p.334)
“62 Be that as it may, it is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.”
In para 98 of the said judgment, it has further been pointed out as follows: (See p 345-46)
“98. While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.”
In subsequent paras of the said judgment, it was observed as follows: (See p.348, para 109)
“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 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.”
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 publicity-oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or a 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 consideration. The court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. 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.
Lexically the expression PIL means a legal action initiated in a Court of law for enforcement of public interest or general interest or in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are effected. Thus, the concept of PIL which has been and is being fostered by judicial activism has become an increasingly important one setting up valuable and respectable records specially in the Arena of Constitutional and legal treatment for the un-representated and under represented.”
PIL needs a self imposed judicial restriction, especially when the grievance exposed does not adversely affect the large number of citizens who on account of innumerable reasons, like poverty, etc., cannot approach the Court to ventilate their grievances. Before the public interest jurisdiction is invoked, the Court is ordinarily expected to be satisfied that there is some element of public interest, that the transaction impugned involves malafides, and that there is a need for balancing the consequences of the public good with the act of the State. Public interest litigation should not ordinarily be permitted as an adventurous freak in Court. The Courts should shun the temptation of litigant to achieve political goals or personal gains.
Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be “publicity interest litigation” or “politics interest litigation” or for moving the courts with oblique motive for personal gains. It should be properly regulated and should be averted. It should not be allowed to become a tool in unscrupulous hands to release vendetta and wreak vengeance as well. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. The petitioner has failed to satisfy that he was genuinely concerned in the public interest.
We now proceed to deal with the arguments advanced by the rival parties. As stated earlier this is a petition under Article 226 of the Constitution of India. It empowers the High Court to issue directions or orders or writs for the enforcement of any of the legal rights. The petitioner does not seek to enforce any of his rights nor does he complain that any of his legal/fundamental right is violated.
Yet there is another aspect of this case. It is not disputed to the petitioner that neither he had contested the election against Smt. Sonia Gandhi nor he was elector, but as a third party he has filed this petition styled as Public Interest Litigation. In this context, we find that the Hon’ble Apex Court had deprecated such Public Interest Litigation commenced by a third party. In S.P.Gupta Vs. Union of India , 1981 Suppl SCC 87, Hon’ble Apex Court held as under:-
“But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others.”
We find that the petitioner is a total stranger to the proceedings commenced before the District Election Officer. He cannot be permitted to question the correctness of the order passed by a competent authority. If he is permitted, every person could challenge order passed by any court or tribunal even if the parties do not desire to do so and are inclined to acquiesce in the decision.
Neither under the provisions of the Code nor under any other statute a third party stranger is permitted to question the correctness of order passed by a competent court or tribunal. Being the third party the stranger- the petitioner has no right to seek redress by questioning the legality, validity or correctness of the order passed by the District Election Officer/Returning Officer, Raebareli. It is not the case of the petitioner that the aggrieved party is a minor, an insane person or is suffering from any other disability which the law recognizes as sufficient to permit another person, eg. next friend, to move the Court on his behalf. It is also not the case of the petitioner that any of the aggrieved party, who is under some disability recognized by law has asked him to question the decision of the District Election Officer respondent No.2. We feel that it would be unsafe and hazardous that at the behest of the third party the matter, which has already been concluded between the parties, should be reopened.
We are of the considered view that no stranger can approach this Court under Article 226 on the basis of personal philosophy, without disclosing any legal disability to the interested party recognized by the law.
Keeping in view the law laid down by the Hon’ble Apex Court in Karamjeet Singh Vs. Union of India AIR 1993 SCC 284 and Ashok Kumar Pandey Vs. State of Bengal AIR 2004 SCC 280, the petition is devoid of any merit. The petition cannot be treated as Public Interest Litigation and the petitioner being the third party and stranger cannot be permitted to question the correctness of the order passed by the District Election Officer as referred to above.
After having a look over the whole issue, we find that the contention of the petitioner as reflected in the petition that the instant case should be treated as Public Interest Litigation, is devoid of any merit and we hold that he has no locus-standi to file the instant petition styled as Public Interest Litigation.
It is not a dispute between the parties that the petitioner has filed one petition on the same cause of action under Article 32 of Constitution of India, copy of which is on record. The Hon’ble Apex Court after hearing learned counsel for the parties dismissed the same and passed the orders as contained in Annexure No. 18 to the writ petition;
After dismissal of the aforesaid petition by the Hon’ble Apex Court, the petitioner has not filed any review petition. It was open to the petitioner to file review and in case of its dismissal a curative petition. He has failed to point out as to why the same was not done. At his juncture, we may clarify that before Hon’ble Apex Court Annexure P-14 (which is annexure No.1 to the instant writ petition), the order passed by respondent No.2 dated 23.10.2004 was challenged. In the given circumstances, we find that neither review was filed nor any curative petition was filed nor it is stated before this Court that any such petition is pending before the Hon’ble Apex Court. Accordingly, finality is to be attached to the order passed by the Hon’ble Apex Court on 11.4.2005. Even at this stage, the petitioner has not pressed before this Court that he is inclined to file such petition before the Hon’ble Apex Court. Consequently, we have to proceed with the matter with the assumption that the order passed by Hon’ble Apex Court has become final as the same has not so far been challenged before the Hon’ble Supreme Court.
In the instant case, the petitioner is carrying his point of view firstly before the Election Commission, then before the Returning Officer Raebareli and then before the Hon’ble Apex Court, and after the verdict of the Hon’ble Supreme Court (Annexure No.18) as conclusive, he has filed this petition on the same cause of action challenging the order of Returning Officer before this Court. Dr. Nigam appearing for respondent No.1 has further urged that the Hon’ble Apex Court considered the scope of such petition in the case of S.P.Anand, Indore Vs. H.D.Devegowda and others (1996) 6 SCC, 734 wherein it has been emphasized that the process of the Court should not be allowed to be abused by a person who desires to persist with his point of view by filing series of petitioner. Paragraph 18 of the report reads as under:-
18. Before we part, we cannot help mentioning that on issues of constitutional law, litigants who can lay no claim to have expert knowledge in that filed should refrain from filing petitions, which if we may say so, are often drafted in a casual and cavalier fashion giving an extempore appearance not having had even a second look. This is the impression that one gets on reading the present petition. it is of utmost importance that those who invoke this Court’s jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a knight-errant roaming at will in pursuit of issues providing publicity. He must remember that as a person seeking to espouse a public cause, he owes it to the public as well as to the court that he does not rush to court without undertaking a research, even if he is qualified or competent to raise the issue. Besides, it must be remembered that a good cause can be lost if petitions are filed on half-baked information without proper research or by persons who are not qualified and competent to raise such issues as the rejection of such a petition may affect third party rights. Lastly, it must also be borne in mind that no one has a right to the waiver of the locus standi rule and the court should permit it only when it is satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations. So also the court must be careful to ensure that the process of the court is not sought to be abused by a person who desires to persist with his point of view, almost carrying it to the point of obstinacy, by filing a series of petitions refusing to accept the Court’s earlier decisions as concluding the point. We say this because when we drew the attention of the petitioner to earlier decisions of this Court, he brushed them aside, without so much as showing willingness to deal with them and without giving them a second look, as having become stale and irrelevant by passage of time and challenged their correctness on the specious plea that they needed reconsideration. Except for saying that they needed reconsideration he had no answer to the correctness of the decisions. Such a casual approach to considered decisions of this Court even by a person well-versed in law would not be countenanced. Instead, as pointed out earlier, he referred to decisions having no bearing on the question, like the decisions on cow slaughter cases, freedom of speech and expression, uniform civil code, etc.; we need say no more except to point out that indiscriminate use of this important lever of public interest litigation would blunt the lever itself.
Relying upon the decision of Hon’ble Apex Court in State of Maharashtra Vs. Ishwar Piraji Kalpatri and others (1996) 1 Supreme Court Cases 542, learned Counsel for the respondent argued with vehemence that the petitioner being a party to the earlier proceedings cannot be allowed at this stage at least to take a chance and if he gets the impression that he will not succeed to seek permission to withdraw the original proceedings, obviously with a view to re-agitate the same contentions, that has attained the finality by a highest court i.e. the Apex Court in different proceedings.
We agree with the contention of the learned counsel for the respondents that the judicial discipline requires that the decision of the Hon’ble Apex Court should be obeyed and abide by the orders of the Hon’ble Apex Court. At this juncture it would be useful to reproduce relevant paragraphs of the following pronouncements.
Chhavi Mehrotra Vs. Director General, Health Service 1995 Supp (3) SCC 434, para 1 which reads as under:-
1. The petitioner, Miss Chhavi Mehrotra, has moved this writ petition before this Court under Article 32 of the Constitution of India for directions for consideration of her admission to the MBBS course against the 15% all India quota of 1992. This writ petition along with other similar petitions came for consideration and certain comprehensive directions were issued in matters for admission of students in the waiting list to various colleges in the country. In obedience to the orders of this Court a notification dated 28.5.1993 was issued by the Director General of Health Services calling upon the candidates to signify their willingness to be considered for admission under the scheme evolved by the court. Despite the whole matter being seized of by the court, the petition moved- and what is disturbing us is that the learned Judge of the High Court entertained- an independent Writ Petition No.1508 (M/S) of 1993 before the Lucknow Bench of the High Court and obtained certain directions which would not only be consistent with the consequences of the implementation of this Court’s order but would also interfere and detract from it. Learned counsel would say that it was a direct interference with the proceedings before this Court. It is clear case where the High Court ought not to have exercised jurisdiction under Article 226 where the matter was clearly seized of by this Court in a petition under Article 32. The petitioner was eonomine a party to the proceedings before this Court. It is an unhappy situation that the learned Judge of the High Court permitted himself to issue certain directions which, if implemented, would detract from the plenitude of the orders of this Court. The learned Single Judge’s perception of justice of the matter might have been different and the abstinence that the observance of judicial propriety, counsels might be unsatisfactory; but judicial discipline would require that in a hierarchical system it is imperative that such conflicting exercise of jurisdiction should strictly be avoided. We restrain ourselves from saying anything more.
Abbai Maligai Partnership Firm and another Vs. K.Santhakumaran and others (1998) 7 SCC 387, in para 4 of which it has been held as under:
4. “The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the selfsame order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned Single Judge at that stage is subversive of judicial discipline. The High Court was aware that the SLPs against the order dated 7.1.1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject matter of challenge in the SLPs in this Court after the challenge had failed”.
State of U.P. Vs. Kailash Nath Agarwal & others AIR 1973 SC 2210. Relevant para 15 reads as under:-
15. The decisions referred to above clearly established that the powers conferred on the District Magistrate and the other Magistrate under Section 337 are concurrent and that a District Magistrate even after commitment, has power to tender pardon. The proviso to Section 337 (1) makes it clearly that the District Magistrate in addition to the Magistrates referred to therein, has power to tender pardon during inquiry into or trial of the offence. Though the above decisions had no occasion to consider whether the District Magistrate has power to tender pardon, when the Magistrate enquiring into the offence has once refused, we are not able to find any such restriction placed upon the power of the District Magistrate by the wording of the section itself. As the power conferred by sub-section (1) of Section 337 on the different classes of Magistrate is concurrent and is of the same character. It follows that the power to tender pardon can be exercised by every one of the authorities mentioned therein subject to the limitations specified in the section itself. The mere fact that a Magistrate of the First Class enquiring into the offence has declined to grant pardon as in the case before us, does not take away the power or jurisdiction of the District Magistrate to entertain a further application for grant of pardon. Though the District Magistrate has got power to consider a further application, nevertheless, it is needless to state that he will have due regard to the views expressed by the Magistrate for refusing to grant pardon. We must, however, state that judicial propriety requires that if a higher authority had declined to tender pardon, a lower authority should not grant pardon except on fresh facts which were not and could not have been before the higher authority when it declined to grant pardon. Even if pardon has been refused on one occasion, a further request may be made before the same Magistrate or the District Magistrate. But such a further request can be entertained and considered only if fresh or additional facts are placed by the party concerned.
Union of India Vs. Nanak Singh AIR 1968 SC 1370. Relevant para 5 of which is reproduced as under:
5. This Court in Gulachand Chhotalal Vs. State of Gujrat, AIR 1965 SC 1153 observed that the provisions of S.11 of the Code of Civil Procedure are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principal of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in cosntroversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. The Court in Gulabchand’s case, AIR 1965 SC 1153 left open the question whether the principle of constructive res judicata may be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceedings but was not so raised therein, must still be deemed to have been decided.
Thus, in view of the pronouncements of the Hon’ble Apex Court, not only the judicial discipline requires but it is a constitutional obligation on this Court to obey and abide by the orders of the Hon’ble Apex Court. Consequently, the judicial discipline does not warrant any interference under Article 226 of the Constitution of India, especially in the circumstances when the petitioner had choice to move before the Hon’ble Apex Court by filing a review petition or a curative petition, but with no stretch of imagination, this Court has any power to form a different opinion than what has already been formed by the Hon’ble Apex Court and the finality has been attached to it by not agitating the same by the petitioner.
To sum up, we hold that after dismissal of the petition by the Hon’ble Apex Court the instant petition on the same ground under Article 226 of the Constitution of India for seeking a discretionary relief cannot be entertained by this Court vide judgment in Satrucharla Vijaya Rama Raju Vs. Nimmaka Jaya Raju and others 2006 (1) SCC 212. Thus on this count, the petition is not maintainable. Further, we find that after decision in the writ petition subsequent suit or proceedings on the same subject is also barred vide Union of India Vs. Nanak Singh AIR 1968 SC 1370 (supra) and State of Punjab Vs. Dua Das Kaushal AIR 1971 SC 1676 (supra).
Yet there is another aspect of this case. The jurisdiction of entertaining a writ petition under Article 32 by the Hon’ble Supreme Court and another Under Article 226 by the High Court, both are plenary in nature. The petitioner chose to approach the Hon’ble Supreme Court under Article 32 of the constitution of India and the Hon’ble Apex Court upon hearing, refused to entertain the petition and dismissed it. On the same cause of action only by adding a prayer is not maintainable before this Court and the petitioner cannot be permitted to do the same vide decision in Common Cause, A Registered Society Vs. Union of India and others (1999) 6 SCC 667, para 179 of which is reproduced as under:
179. We may also point out that the powers of this Court under Article 32 and that of the High Court under Article 226 are plenary powers and are not fettered by any legal constraints. If the Court, in exercise of these powers has itself committed a mistake, it has the plenary power to correct its own mistake as pointed out by this Court in S.Nagaraj Vs. State of Karnataka in which it was observed as under: (SCC p.618, Para 18)
“18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in administrative law as in public law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it can not on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order.”
The Court also observed: (SCC p. 619, para 19)
“19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicting the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice.”
The Court further observed: (SCC p. 619 para 19)
“Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.”
The petitioner has strenuously argued that the petition under Article 226 is maintainable in this case for the reasons that the Hon’ble Apex Court dismissed the petition in-limine and it is a settled principle of law that if petition has been dismissed in-limine then a fresh petition has been filed and the second petition would not be barred by res judicata. In support of his contention, petitioner has placed reliance on the following decisions of the Hon’ble Apex Court:-
(a) Fertilizer Corporation Kamgar Union & others Vs. Union of India and others, AIR 1981 SC 344, para 10 which reads as under:-
10. Article 32 of the Constitution which guarantees by clause (10 the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III, provides by clause (2) that:
“The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo waranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”.
It is manifest that the jurisdiction conferred on this Court by Article 32 can be exercised for the enforcement of the rights conferred by Part III and for no other purpose. Clause (1) as well as clause (2) of Article 32 bring out this point in sharp focus. As contrasted with Article 32, Article 226 (1) of the Constitution provides that:
“Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose”. (emphasis supplied).
The difference in the phraseology of the two Articles brings out the marked difference in the nature and purpose of the right conferred by these Articles. Whereas the right guaranteed by Article 32 can be exercised for the enforcement of fundamental rights only the right conferred by the enforcement of fundamental rights but for any other purpose.
(b) Government of India Vs. Workmen of State Trading Corporation (1997) 11 SCC 641, para-4 of which reads as below:-
4. The learned Additional Solicitor General appearing on behalf of the Government of India contended that the Leather Garment unit was an establishment of the State Trading Corporation and the workmen were employed by that Corporation and not by the Government of India and, therefore, the workmen of the State Trading Corporation could not claim employment with the Government of India or in any corporation or undertaking of the Government of India. It was contended by the third respondent- Government of India that it was for the State Trading Corporation to deal with the problem of non-employment of the petitioners and not the Government of India. These contentions are borne out from para 5 of the Judgment of the learned Single Judge. Para 6 of the judgment shows that the High Court without deciding on the question whether any such direction could be issued against the Government of India proceeded to conclude the matter on the basis of the aforementioned decision of this Court. The decision of this Court is virtually a non-speaking order which does not set out the facts and the circumstances in which the direction came to be issued against the Government. It is not clear as to what was the connection between the respondent-Corporation and the State Government. In the present case the Government of India had clearly averred that it had nothing to do with the State Trading Corporation and there was no relationship of master and servant between the petitioners and the Government of India and, therefore, the Government of India was not in any manner concerned with the closure of the Leather Garment unit of the State Trading Corporation and the consequences thereof. Mr. Usgaocar rightly emphasised that the decision on which the High Court had relied could not be treated as a precedent and in support of this contention he drew our attention to a Constitution Bench judgment in the case of Krishena Kumar V.Union of India, (1990) 4 SCC 207. In paras 18 and 19 the question as to when a decision can have binding effect has been dealt with. We need say no more as it is obvious from the decision relied on that it does not set out the facts or the reason for the conclusion or direction given. it can, therefore, not be treated as a binding precedent.
( c ) H.M.Seervai : Constinutional Law of India: 3rd Ed. Vol. II
243. Do principles of res judicata, actual or constructive, apply, if a petition is dismissed in limne without passing a speaking order? According to decided cases, the answer is, “No”. In Daryao’s Case it was observed that if the petition was dismissed in limne without a speaking order, then such a dismissal could not be treated as creating the bar of res judicata. In workmen, C.P. Trust V. Board of Trustees, (1978) 3 S.C.R. 971, it was held that the principles of res judicata, and constructive res judicata, had been rightly applied to proceedings other than suits on the ground of public policy. However, it would be stretching the doctrine of constructive res judicata too far to say that the dismissal of a special leave petition under Art. 136 in limne by an unspeaking order would involve a rejection of all the grounds urged n the petition. Consequently, a separate proceeding urging the very same grounds- like a writ petition under Art. 226- was not barred on the principle of constructive res judicata. The principle was also affirmed in Ahmedabad Mfg. & Calico Prtg. Co. V. workmen. In this case, the Supreme court had dismissed a Special Leave petition under Art. 136, saying, “upon hearing Counsel the Court allowed the special leave petition to be withdrawn.” The Supreme Court held that the Appellants were not barred by res judicata from maintaining a petition under Art. 226. The High Court had perused the affidavits of parties to ascertain the circumstances under which the present appellants were permitted to withdraw the petition. The Supreme Court held that it was not a correct approach; the Supreme Court order had to be read as it stood. If the court intended to dismiss the petition at the threshold, it would have said so. In the result the appeal was allowed.
(d) Kunhayammed & others Vs. State of Kerala AIR 2000 SC 2587, para-20 of which is reproduced as under:-
28. Incidentally we may notice two other decisions of this Court which though not directly in point, the law laid down wherein would be of some assistance to us. In Shankar Ramchandra Abhyankar V. Krishnaji Dattatraya Bapat, AIR 1970 SC 1, this Court vide para 7 has emphasised three pre-conditions attracting applicability of doctrine of merger. They are: (I) the jurisdiction exercised should be appellate or revisional jurisdiction; (ii) the jurisdiction should have been exercised after issue of notice; and, (iii) after a full hearing in presence of both the parties. Then the appellate or revisional order would replace the judgment of the lower Court and constitute the only final judgment. In Sushil Kumar Sen V. State of Bihar, AIR 1975 SC 1185 the doctrine of merger usually applicable to orders passed in exercise of appellate or revisional jurisdiction was held to be applicable also to orders passed in exercise of review jurisdiction. This Court held that the effect of allowing an application for review of a decree is to vacate a decree passed. The decree that is subsequently passed on review whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one. The distinction is clear. Entertaining an application for review does not vacate the decree sought to be reviewed. It is only when the application for review has been allowed that the decree under review is vacated. Thereafter the matter is head afresh and the decree passed therein, whatever be the nature of the new decree, would be a decree superseding the earlier one. The principle of logic flowing from the above said decisions can usefully be utilized for resolving the issue at hand. Mere pendency of an application seeking leave to appeal does not put in jeopardy the finality of the decree or order sought to be subjected to exercise of appellate jurisdiction by the Supreme Court. It is only if the application is allowed and leave to appeal granted then the finality of the decree or order under challenge is jeopardized as the pendency of appeal reopens the issues decided and this Court is then scrutinizing the correctness of the decision in exercise of its appellate jurisdiction.
31. In Supreme Court Employees’ Welfare Associations case (AIR 1990 SC 334) : (1990 Lab IC 324) (supra), this Court held:-
“When Supreme Court gives reasons while dismissing a special leave petition under dismissing a special leave petition under Article 136 the decision becomes one which attracts Article 141. But when no reason is given and the special leave petition is summarily dismissed, the Court does not lay down any law under Article 141. The effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave petition should be granted."
Leave granted-dismissal without reasons-merger results.
(e) Krishena Kumar Vs. Union of India & others, (1990) 4 SCC 207, para-19 of which reads as under:-
19. “The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain propositions wider than the case itself required”. This was what Lord Selborne said in Caledonian Railway Co. V. Walker’s Trustees (1882) 7 App cas 259 and Lord Halsbury in Quinn V. Leathem 1901 AC 495. Sir Frederick Pollock has also said: “Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given but only to the principles accepted and applied as necessary grounds of the decision.”
(f) Indian Oil Corporation Vs. State of Bihar and others AIR 1986 SC 1780, para-6 of which reads as under:-
6. “ We are clearly of opinion that the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition without dismissing it on the preliminary ground. As observed by this Court in Workmen of Cochin Port Trust, (1978) 3 SCC 119: (AIR 1978 SC 283), the effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted. This conclusion may have been reached by this Court due to several reasons. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding is a wholly different and distinct proceeding . Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be re-opened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found if on mere guesswork”.
(g) Collector of Customs, Bombay Vs. Elephanta Oil & Industries Ltd., Bombay (2003) 4 SCC 325, para-15 of which reads as under:
15. “ It is to be stated that the Tribunal relied upon its earlier decision by observing that the SLP against the said decision was dismissed by this Court summarily. But it is well –settled law that in case where SLP is dismissed without assigning any reason, that order would not constitute a binding precedent.”
(h) Arati Ray Choudhury Vs. Union of India and others AIR 1974 SC 532, para-11 of which is quoted below:-
11. “It is true that long back in 1955 this Court had held in M.K.Gopalan Vs. State of Madhya Pradesh (1955) 1 SCR 168 at p. 174 = (AIR 1954 SC 362) = (1954 Cri LJ 1012) that, except for good reasons the practice of approaching the Supreme Court directly under Article 32 in matters which have been taken to the High Court and found against, without obtaining leave to appeal therefrom, is not be encouraged. Recently in Tilokchand Motichand Vs. H.B.Munshi (1969) 2 SCR 824 = (AIR 1970 SC 898), it was observed that this Court refrains from acting under Article 32 if the petitioner had already moved the High Court under Art. 226. In the words of Hidayatullah C.J. “this constitutes a comity between the Supreme Court and the High Court” and since the motivating factor is the existence of a parallel jurisdiction, in another Court, if that Court has been moved this Court insists on bringing the decision of that Court before it for review. But the distinguishing feature of the instant case is that the High Court dismissed the writ petition not on merits, though by a speaking order. The learned Judge thought that it was not “just and proper” for him to entertain the petition under article 226 because if he were to grant any relief therein, it would clash with the judgment rendered by the Division Bench on Sept. 14, 1971 in appeal No.455 of 1971 confirming the judgment of the single Judge dated December 24, 1970, holding that the vacancy must be treated as a reserved vacancy for the scheduled castes and that respondent No.8 was alone entitled to be considered for the post of from amongst the 4 candidates. The learned Judge therefore “recalled” the rule and dismissed the petition without considering the merits of the contentions raised before him by the petitioner. As the petition filed in the High Court under article 226 was not dismissed on merits, the present petition can not be barred by res judicata or by the application of any principle analogous to it”.
(i) Hoshnak Singh Vs. Union of India & others, AIR 1979 Screening Committee 1328, paras-7, 8 & 9 of which are read as under:-
6. “The earlier petition was dismissed by a non-speaking, one word, order ‘dismissed’. The High Court may as well dismiss the petition in limne on the ground of delay or laches or on the ground of alternative remedy. The second petition after pursuing the alternative remedy would not be barred by the principles analogous to res judicata. More often a petition under Article 226 is dismissed on the ground that before invoking the extraordinary jurisdiction of the High Court, if the petitioner has an alternative remedy under a statue under which the right is claimed by the petitioner, the Court expects the petitioner to exhaust the remedy and in such a situation the petition is dismissed in limne.
7. If after preferring an appeal or revision under the statute under which the right is claimed by the petitioner a petition under Article 226 is filed irrespective of the fact that the revision or appeal was dismissed and the original order which was challenged in the first petition had merged into the appellate or revisional order, nonetheless the second petition in the circumstances would not be barred by the principles analogous to res judicata because the cause of action is entirely different and the merger of the order cannot stand in the way of the petitioner invoking the jurisdiction of the High Court under Article 226.
8. In the leading case of Daryao V. State of U.P. (1962) 1 SCR 574: (AIR 1961 Screening Committee 1457) this court in terms said that if the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it then the dismissal of the writ petition would not constitute a bar to the subsequent petition under Article 32 except in cases where the facts found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in limne and an order is pronounced in that behalf whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order says that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar except in cases indicated in the judgment. Then comes an observation which may better be quoted (at p.1466 of AR):
“If the petition is dismissed in limne without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limne even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all, but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Article 32”.
(j) M/s. Tilokchand Motichand & others Vs. H.B.Munshi, Commissioner of Sales Tax, Bombay and another, para-6 of which reads as under:
6. “Then again this Court refrains from acting under Article 32 if the party has already moved the High Court under Article 226. This constitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this Court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection, the principle of res judicata has been applied, although the expression is somewhat inapt and unfortunate. The reason of the rule no doubt is public policy which Coke summarised as “interest reipublicae res judicata non rescindi” but the motivating factor is the existence of another parallel jurisdiction in another Court and that Court having been moved, this Court insists on bringing its decision before this Court for review. Again this Court distinguishes between cases in which a speaking order on merits has been passed. Where the order is not speaking or the matter has been disposed of on some other ground at the threshold, this Court in a suitable case entertains the application before itself. Another restraint which this Courts puts on itself is that it does not allow a new ground to be taken in appeal. In the same way, this Court has refrained from taking action when a better remedy is to move the High Court under Article 226 which can go into the controversy more comprehensively than this Court can under Article 32.”
Refuting the contentions advanced by the petitioner, learned counsel for the respondents vehemently argued that the Hon’ble Apex Court dismissed the petition upon hearing the petitioner at length. The petitioner was not given any liberty to approach the High Court under Article 226 for the same relief. In absence of such permission in the order itself, the instant petition is not maintainable. Thus, it can be concluded that the Hon’ble Apex Court has not given the option to approach the High Court on the same ground as it dismissed the petition not in limine, but passed the final order after hearing the parties.
It has also been urged that in the given circumstances, the principle of res judicata would operate and the instant petition is barred by the principles of res judicata and constructive res judicata, hence may not be entertained. In order to establish that the principle of res-judicata is fully applicable in the present case, our attention has been drawn towards several cases. It would be useful to reproduce the relevant paragraphs of the cases relied upon by the respondent:-
(i) T.P.Moideen Koya Vs. Govt. of Kerala and others (2004) 8 SCC 106. Relevant paras 11 & 13 are reproduced as under:
10. The principle which can be culled out from these authorities is that the bar of res judicata or constructive res judicata would even to a petition under Article 32 of the Constitution where a similar petition seeking the same relief has been filed under Article 226 of the Constitution before the High Court and the decision rendered against the petitioner therein has not been challenged by filing an appeal in the Supreme Court and has been allowed to become final. However, this principle, namely, the bar of res judicata or principles analogous thereto would not apply to a writ of habeas corpus where the petitioner prays for setting him at liberty. If a person under detention files a writ of habeas corpus under Article 226 of the Constitution before the High Court and the writ petition is dismissed (whether by a detailed order after considering the case on merits or by a non-speaking order ) and the said decision is not challenged by preferring a special leave petition under Article 136 of the Constitution and is allowed to become final, it would still be open to him to file an independent petition under Article 32 of the Constitution seeking a writ of habeas corpus.
13. It is well settled that a decision pronounced by a court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by law. It is in the interest of the public at large that finality should attach to the binding decisions pronounced by a court of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. While hearing a petition under Article 32 it is not permissible for this Court either to exercise a power of review or some kind of an appellate jurisdiction over a decision rendered in a matter which has come to this Court by way of a petition under Article 136 of the Constitution. The view taken in Bhagubhai Dullabhbhai Bhandari Vs. District Magistrate that the binding nature of the conviction recorded by the High Court against which a special leave petition was filed and was dismissed can not be assailed in proceedings taken under Article 32 of the Constitution was approved in Daryao Vs. State of U.P.
(ii) Direct Recruit class II Engineering Officers’ Association Vs. State of Maharashtra and others (1990) 2 SCC 715, para 35 of which reads as under:-
35.Writ Petition No.1327 of 1982 was argued by J.H.Bhatia, the petitioner, in person. He was directly recruited as Deputy Engineer Class II in July 1959 and has challenged the constitutional validity of the 1978 Rules. Mr. Singhvi, the learned counsel for the respondents, took a preliminary objection to the maintainability of the writ petition on the ground that his claim stands barred by principles of res judicata. Admittedly, he was represented in writ petition No.672 of 1981, filed before the Bombay High Court which was dismissed on September 7, 1981, upholding 1978 Rules. An application under Article 136 of the Constitution being numbered as S.L.P. No.8064 of 1981 was filed from this judgment in representative capacity and was dismissed by this Court on December 29, 1981. These facts were not denied by the petitioner before us, and it was, therefore, contended on behalf of the respondents that so far the validity of the 1978 Rules is concerned, it must be held to be binding on the petitioner in respect of identical relief now pressed by him in the present writ case. The objection appears to be well founded. It is well established that the principles of res judicata are applicable to writ petitions. The relief prayed for on behalf of the petitioner in the present case is the same as he would have, in the event of his success, obtained in the earlier writ petition before the High Court. The petitioner in reply contended that since the special leave petition before this Court was dismissed in limne without giving any reason, the order cannot be relied upon for a plea of res judicata. The answer is that it is not the order of this Court dismissing the special leave petition which is being relied upon; the plea of res judicata has been pressed on the basis of the High Court’s judgment which became final after the dismissal of the special leave petition. In similar situation a Constitution Bench of this Court in Daryao Vs. State of U.P. held that where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasized by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and can not be permitted to be circumvented by a petition under Article 32. An attempted change in the form of the petition or the grounds can not be allowed to defeat the plea as was observed at SCR p. 595 of the reported judgment, thus: (SCR p. 595)
“We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the ground raised by the petitioner in that behalf are substantially the same.”
The decision in Forward Construction Co. Vs. Prabhat Mandal (Regd.), Andheri, further clarified the position by holding that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of he matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.
(iii) Har Swarup, Vs. The General Manager, Central Railway and others AIR 1975 SC 202. Relevant para 16 is reproduced as under:-
16. “It would appear from Ext. 1 that the reliefs claimed by the petitioner in Special C.A. 182 of 1971 were exactly the same as in the present case. The grounds covered were also identical. The High Court held that the petitioner was not entitled to any relief and dismissed his writ application. He failed in getting a chance to appeal to this Court from the judgment of the Bombay High Court. In such a situation it has got to be held that the petitioner’s claim is barred by the principles of res judicata vide Daryao Vs. State of U.P., (1962) 1 SCR 574=(AIR 1961 SC 1457) and Virudhunagar Steel Rolling Mills Vs. Government of Madras, (1968) 2 SCR 740=(AIR 1968 SC 1196).”
(iv) Daryao and others Vs. State of U.P. & others AIR 1961 SC 1457. Relevant paras 9,,11 and 15 are reproduced as under:-
9. “But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in S.11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Art. 32.”
11. The same question can be considered from another point of view. If a judgment has been pronounced by a court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law. Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the issue of an appropriate writ on the ground either that he had no fundamental right as pleaded by him or there has been no contravention of the right proved or that the contravention is justified by the Constitution itself, it must remain binding between the parties unless it is attacked by adopting the procedure prescribed by the Constitution itself. The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. As Halsbury has observed “subject to appeal and to being amended or set aside a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences” Halsbury’s Laws of England, 3rd Ed., Vol.22, p. 780 paragraph 1660. Similar is the statement of the law in Corpus Juris: “the doctrine of estoppel by judgment does not rest on any superior authority of the court rendering the judgment, and a judgment of one court is a bar to an action between the same parties for the same cause in the same court or in another court, whether the latter has concurrent or other jurisdiction. The rule is subject to the limitation that the judgment in the former action must have been rendered by a court or tribunal of competent jurisdiction”, Corpus Juris Secundum, Vol. 50 (Judgments), p. 603. “It is, however, essential that there should have been a judicial determination of rights in controversy with a final decision thereon”, Ibid. P. 608. In other words, an original petition for a writ under Art. 32 cannot take the place of an appeal against the order passed by the High Court in the petition filed before it under Art. 226. There can be little doubt that the jurisdiction of this Court to entertain applications under art. 32 which are original cannot be confused or mistaken or used for the appellate jurisdiction of this Court which alone can be invoked for correcting errors in the decisions of High Courts pronounced in writ petitions under Art. 226. Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Art. 32 of the Constitution. it is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a court of competent jurisdiction, there has been a contest between the parties before the court, a fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced its judgment or decision. Such a decision pronounced by a court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribe by the Constitution. In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained.
(v) Karnataka Pradesh Hindh Maha Sabha Vs. State of Karnataka and others, (2004) 10 SCC 129, relevant para 1 of which is reproduced as under:-
1. “By means of this petition under Article 32 of the Constitution, the petitioner, who claims himself a public-spirited person, has challenged the allotment of land of 811 acres 20 guntas, acquired and possession taken under the Land Acquisition Act, 1894 in the year 1960. The further prayer is that the said land may be allotted only to landless, plotless and homeless poor people. The petitioner, before filing this writ petition, had already filed a petition under Article 226 of the Constitution before the Karnataka High Court, claiming substantially the same relief. The said writ petition was dismissed by the High Court. It is not disputed that against the said order and judgment, no appeal was filed, with the result the said judgment has attained finality.”
(vi) Devilal Modi Vs. Sales Tax Officer Ratlam and others AIR 1965 SC 1150, relevant para 12 of which is reproduced as below:-
12. “The present proceedings illustrate how a citizen who has been ordered to pay a tax can postpone the payment of the tax by prolonging legal proceedings interminably. We have already seen that in the present case the appellants sought to raise additional points when he brought his appeal before this Court by special leave; that is to say, he did not take all the points in the Writ Petition and thought of taking new points in appeal. When leave was refused to him by this Court to take those points in appeal, he filed a new petition in the High Court and took those points, and finding that the High Court had decided against him on the merits of those points, he has come to this Court; but that is not all. At the hearing of this appeal, he has filed another petition asking for leave from this Court to take some more additional points and that shows that if constructive res judicata is not applied to such proceedings a party can file as many writ petitions as he likes and take one or two points every time. That clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially affected. We are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata.”
Learned counsel for the respondents has further urged that although the Hon’ble Apex Court dismissed the petition by a short order without giving elaborate reasons, but the order was passed upon hearing the parties. Thus, it is not possible for anybody to interpose the words and meaning of the judgment. There is nothing in the order, which may even remotely indicate that the writ petition was not dismissed on merit. The Hon’ble Apex Court found no merit and after giving requisite hearing to the parties dismissed the petition.
It appears that on hearing the parties the Hon’ble Apex Court decided the case on merit and has not permitted the petitioner to approach the High Court under Article 226. Consequently, it is not possible to hold that the petition was dismissed in limine. Therefore, the assertion of the petitioner on the strength of the case laws cited by him does not lead to an impression that the petition was dismissed in limine. The rulings cited by the petitioner are on the point of dismissal of the petition in limine, which has no application to the facts of the case where petition was dismissed upon hearing the parties on merit. We are in full agreement with the argument of the learned Counsel for the respondent that the petition was dismissed on merits, accordingly rulings relied upon by the petitioner to support his contention that the instant petition under Article 226 is maintainable, are of no avail. Since the petition was dismissed on merit by Hon’ble Apex Court, that order has become final and the principles of res judicata would operate as per the law cited by the respondent No.1 and the instant second petition before us is not maintainable.
In view of the sequence of events, referred to above, we find that the order dated 11.04.2005 passed by the Hon'ble Apex Court dismissing the petition was since passed on merits upon hearing the parties. Thus, all Courts in India are bound to follow the decision of the Hon'ble Apex Court. General Principles of Law as laid down by Hon'ble Apex Court are in favour of every person including those who are not party to that order, while in this case the parties are the same. Thus, we are of the view that the petition was dismissed on merit upon hearing the parties. Accordingly, the decision shall be treated as precedent and is binding on this Court. Consequently, this petition is not maintainable being barred by the principles of res-judicata.
Even if for the arguments’ sake it is presumed that the order of dismissal passed is treated as in-limine, this Court can take into consideration the relevant facts of the case and has to decide as to whether it was dismissed on merits or not. In Chandi Prasad Chokhani Vs. State of Bihar, AIR 1961, S.C. 1708, at para 17 it has been held as under:-
16. “A careful examination of the previous decisions of this Court shows that whenever the question was considered, this Court said that save in exceptional and special circumstances such as were found in Dhakeswari'’ case, 1955-1 SCR 941: ((S) AIR 1955 SC 65) or Baldev Singh’s case, 1960-40 ITR 605: (AIR 1961 SC 736), it would not exercise its power under Art. 136 in such a way as to by-pass the High Court and ignore the latter’s decision, a decision which has become final and binding on the parties thereto, by entertaining appeals directly from the orders of a tribunal. Such exercise of power would be particularly inadvisable in case where the result may be a conflict of decisions of two courts of competent jurisdiction, a conflict which is not contemplated by Ss. 23, 24 and 25 of the Act. On the contrary, the object of these sections is to avoid a conflict by making the decision of the assessing authorities final on, questions of fact subject to appeal, revision of review as provided for by S. 24 and the decision of the High Court subject to an appeal to this Court, final on questions of law under S.25 of the Act. To ignore the decision of the High Court on a question of law would really nullify the statutory provisions of S.25 of the Act.”
Thereafter, the Hon'ble Apex Court considered this scope in Union of India Vs. Nanak Singh AIR 1968 SC 1370 (supra) and lastly in Abbai Maligai Partnership Firm and another Vs. K.Santhakumaran and others (1998) 7 SCC 387, para 4 of which is reproduced as under:-
4. The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the selfsame order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned Single Judge at that stage is subversive of judicial discipline. The High Court was aware that the SLPs against the order dated 7.1.1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject matter of challenge in the SLPs in this Court after the challenge had failed.
Upon consideration of the entire facts available on record and the law laid down by the Hon'ble Apex Court, we are of the opinion that the cause of action, subject matter and pleadings of the parties are the same, accordingly the subsequent petition on this ground is barred by the principles of res judicata and is not maintainable.
It is also a settled principle of law that even if the petitioner had a locus standi to file a petition under Article 226 but the same can be lost by his conduct as held in Maharashtra State Road Transport Corporation V. Balwant Regular Motor Service Amravati and others, AIR 1969 Supreme Court 329, para 11 of which is reproduced as under:-
11. “It is well established that the writ of certiorari will not be granted in a case where there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, similar to though not identical with, the exercise of discretion in the Court of chancery. the principle has been clearly stated by Sir Barnes Peacock in Lindsay Petroleum Co. V. prosper Armstrong Hurd, Abram Farewall, and John Kemp, (1874) 5 PC 221 at p.239 as follows:
“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statue of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”
This passage was cited with approval by this Court in a recent case- The Moon Mills Ltd. V. M.R.Mehar, President Industrial Court, Bombay, AIR 1967 SC 1450. In our opinion, the principle of this decision applies to the present case and since respondent No.1 and the other private operators had not even pleaded any circumstances justifying the delay or their conduct, the High Court was in error in granting a writ of certiorari in their favour.”
In view of this background, the petitioner’s conduct is such that no interference is warranted under Article 226 of the Constitution, especially when the conduct of the petitioner debars him from seeking remedy of mandamus as being barred by principle of estoppels and acquiescence.
The instant petition has been filed revealing a bundle of facts. Para 8 of the writ petition contains the purported cause of action and the grounds. It has not been verified in the affidavit filed in support of the petition before this Court. This fact was pointed out to the petitioner, still the petitioner failed to amend his petition or file his affidavit to verify the contents of para 8 of the writ petition. Thus in absence of any affidavit, the contents of para 8 have to be ignored. Accordingly, we are of the view that the petitioner has not come with clean hands and the petition is liable to be dismissed on this count also. We further find that the affidavit which has been filed not in support of the main grounds of the petition, is misleading and accordingly on this count the petition is not tenable for hearing any more, vide Magan Lal Chhagan Lal Pvt. Ltd. Vs. Minucipal Corporation of Greater Bombay and others AIR 1975 S.C. 648 and Mohinder Singh Gill Vs. The Chief Election Commissioner and others AIR 1978 SC 851
The petitioner has sought the relief under Article 226 of the Constitution of India challenging the order dated 23.10.2004 passed by Returning Officer, 19- Raebareli Lok Sabha Constituency, whereby his application for lodging of the complaint under Section 125-A of the Representation of Peoples Act, 1951 against opposite party No.3 Smt. Sonia Gandhi was rejected and he has further sought a mandamus from this Court to direct the Returning Officer to lodge a criminal case against respondent No.3.
Learned counsel for respondent No.1 has argued that the petitioner does not have any locus standi to file either application before the Returning Officer 19- Raebareli Lok Sabha Constituency, or the Election Commission as he was neither the elector of that constituency nor a candidate in the said election, which is not disputed by the petitioner.
The entire election process is a creature of the statue. It is a settled principle of law that Representation of Peoples Act read with conduct of Election Rules forms a complete code and no rights or duties beyond the same can be claimed by anyone, much less a totally stranger to the constituency vide Mohinder Singh Gill Vs. Chief Election Commissioner, AIR 1978 S.C. 851.
Thus, the process of election starts with the issuance of notification for holding election by the Election Commission of India and ends with the declaration of the result of that particular constituency. Sections 21,28, 28-A, 79(d) and 81 of the Representation of peoples Act, 1951 provide a complete scheme for holding election. The Returning Officer is appointed under Section 21 of the Act and his duties are given under Section 24. For the sake of convenience Section 24 is reproduced as below:-
“24. General duty of the returning officer.- It shall be the general duty of the returning officer at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by this Act and rules or orders made thereunder.”
Section 28 of the Act provides the duration of the appointment or continuance of the Returning Officer and its period and the period within which he holds the office. Section 28-A provides that the Returning Officer and Polling Officer etc. shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election. However, Election Commission retains a skeleton machinery like District Election Officer in every District which co-ordinates and supervises all works in the District relating to the conduct of all elections such as preparation and revision of electoral rolls etc., but after declaration of the result of the election in a particular area he ceases to be a Returning Officer
The candidate is required to give information including his/her educational qualifications for the information of the electors of the constituency. In case any elector considers that he/she was mislead by such an information, he/she can file such complaint before the Returning Officer. In the given case, no elector of the constituency or even a rival candidate filed a complaint that he/she was misled by the information of respondent No.3 Smt. Sonia Gandhi about her educational qualifications filled in the relevant proforma. All the information about a candidate’s backgrounds, his criminal antecedent, his properties including educational qualifications furnished to the electors of that particular constituency only. This information remains confined to the voters and other rival candidates and they have only cause of action to make a complaint about any incorrect information. The petitioner does not claim to come within that group.
The petitioner has pleaded that since according to him respondent No.3 had incorrectly given her educational qualification, she is liable to be prosecuted under Section 125 of the Representation of Peoples Act, 1951. However, as filing false information is an offence in which FIR can be lodged only by the public authority, therefore, he submitted a complaint before the Election Commission of India requesting them to take appropriate action under the Act. The petitioner was informed by the Election Commission on 01.07.2004 to the effect that the Returning Officer had already been directed to take appropriate action according to law, annexing therewith a general circular letter dated 02.06.2004. In this circular, Commission has pointed out to the Chief Electoral Officer of the States that in many cases candidates do not give the correct informations, on affidavits, especially in the part relating to the assets in such matter, the Commission pointed out that Section 125-A of the Representation of Peoples Act, 1951 deals with penal provisions for furnishing false information in the affidavit filed in terms of Section 33-A and 171 of I.P.C. On receipt of reply from the Commission, the petitioner filed complaint before the Returning Officer, 19 Raebareli constituency, which was rejected on 23.10.2004 (Annexure No.1).
The petitioner on being questioned by this Court as to whether the Returning Officer of the said constituency had become functus officio or not, conceded that the election result was declared much before filing of the complaint by him either before the Election Commission or before the Returning Officer. Thus in view of provisions of the Representation of Peoples Act, 1951, including Section 28 and various pronouncements of the Hon'ble Apex Court beginning right from constitutional Bench judgment in the case of N.P. Ponnuswami Vs. Returning Officer, Namakhal Constituency, [AIR. 1952 SC 64], and another constitutional Bench judgment of the Hon'ble Apex Court in Mohinder Singh Gill’s case (supra) and a Division Bench judgment of this Court in Satya Deo Singh Vs. Chief Electoral Officer (Writ Petition No.4221 (M/B) of 1999) decided on 27.09.1999, the period of holding office by the Returning Officer comes to an end after declaration of the result of a particular constituency. Consequently after declaration of the result of 19- Raebareli Constituency, the Returning Officer ceased to hold the office and became functus officio.
Thus the Election Commission presumably desired that the Returning Officer on the complaint of the petitioner during the period of election should initiate action only if it continued to hold the office, that is why the word ‘Returning Officer’ has been used against the District Election Officer. It is not a matter of dispute that the District Election Officer has no such powers to take action under law on any act of omission or commission of the candidate as that is done before the Returning Officer only and he is the person who has been authorised by the Election Commission to take appropriate action accordingly. The petitioner himself wrote a letter on 01.07.2004 (Annexure No.4) wherein he has written ‘Returning Officer’ and not the District Election Officer. Consequently, with no stretch of imagination, it can be held that after declaration of the result and in the light of Section 28-A the Returning Officer retains his office and District Election Officer cannot be presumed to be Returning Officer, nor he can exercise any statutory power conferred on him by law.
Section 80 of the Act provides that after the election is over the only mode of challenging the election of returned candidate be, by filing election petition before the appropriate forum by either of the contesting candidates in that election or the electors of that constituency and none else.
The petitioner does not have any locus to file the application before the Returning Officer and in fact there was no Returning Officer and the District Election Officer could not hear such a complaint as it does not fall within his domain in view of Section 28-A of the Act. The language of Section 28-A is very clear and provides in specific words as under:-
28-A Returning Officer, presiding officer, etc. deemed to be on deputation to Election Commission – The Returning Officer, Assistant Returning Officer, Presiding Officer, Polling Officer and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.[emphasis supplied]
Thus, after the conclusion of the election and the declaration of the result all the authorities including the Returning Officer became functus officio under the provisions of Section 28-A of the Act. Even the Election Commission does not possess any power or authority to act in respect of the already concluded election in violation of Section 80 of the Act. Thus, the application under Section 125-A of the Act against respondent No.3 appears to be not maintainable on this count. In paragraph 3 of the writ petition the petitioner has asserted that an offence under Section 125-A of the Act is made out against respondent No.3.
As a matter of fact, Section 125-A provides a mandate that the candidate, who with intent to be elected in an election “gives false information which he knows or has reason to believe to be false” in his nomination paper delivered under sub-Section (1) of Section 33 or in his affidavit which is required to be delivered under sub-Section (2) of Section 33-A, would be punishable with imprisonment for a term which may extend to six months, or with fine, or with both. It is pertinent to mention that the informations required under the above Sections or Rules, 4, 4-A or forms 2-A and Form 26 do not include affidavit or informations being furnished regarding educational qualification. In fact the requirement of giving educational qualifications also was imposed through circular of the Election Commission, but even if there is some inaccuracy in furnishing educational qualification, there is no provision in the Representation of Peoples Act or Rules for criminal prosecution. The requirement of circular does not form the statutory requirement under the Act and is certainly out of the scope and certainly does not come within the ambit of Section 125-A and even if there is a violation, it does not make a candidate liable for prosecution. We further find that corrupt practices and electoral offences are separately dealt with under Part VII of the Act from Sections 123 to 138, but these electoral offences also do not include any incorrect furnishing of educational qualification. Thus, furnishing of incorrect educational qualification does not come within the ambit of any penal provision of the Act.
Section 125-A of the Act under which the petitioner is claiming that a criminal case be lodged against respondent No.3 refers to the false/incorrect information furnished by the candidates under Section 33(1) and 33-A (2) of the Act, with intent to mislead the electors and to win the election, which relates to the information given in the nomination form and regarding the criminal antecedents in a prescribed form which has been made mandatory, pursuant to the judgment of Hon'ble Apex Court, reported in Union of India Vs. Association for Democratic Reforms (2002) 5 SCC 294 (supra).
A bare reading of the Section reveals that it does not refer to the information regarding educational qualification, which used to be furnished by the candidates in a separate prescribed form. Consequently, we are not convinced that the claim of the petitioner for filing of criminal case under Section 125-A of the Act against respondent No.3, is tenable and the petitioner has misconstrued the remedy under section 125-A of the Representation of People Act.
We find that even for the arguments’ sake, it is presumed that the petition is maintainable, the order dated 23.10.2004 passed by the District Election Officer/Returning Officer (Annexure No.1) to the writ petition, impugned in this writ petition, is a speaking and a reasoned order. No material has been provided before this Court to demonstrate any illegality or to infer any abuse of process of law.
A plain reading of the impugned order reveals that the order is legal and valid on the facts placed by the petitioner before him. It appears that the Returning Officer, respondent No.2 has passed it after considering the entire material on record and after affording an opportunity of being heard to the petitioner. The petitioner failed to establish a prima facie case before the Returning Officer for lodging a criminal case against respondent No.3. He also failed to establish that the information furnished by respondent No.3 regarding her educational qualification was incorrect much less false or fraudulent. The petitioner has failed to point out as to what evidence was placed before the officer concerned, and even before this Court there is nothing on record to show that any reliable evidence was led before the officer concerned to establish that information furnished by respondent No.3 was incorrect or false.
The petitioner filed only photocopies of few letters written by unidentified persons. These papers are not admissible in evidence. These letters are said to have been written by some unidentified persons and were not even addressed to the complainant – petitioner Dr. Subramanian Swamy. It appears that whosoever may be the writer of those letters, he did not know as to what relevant information was being asked to verify or testify. They were not supplied with copy of the said form containing educational qualification of the respondent No.3 and on which no question was asked from them as to whether this information is correct or not. The petitioner has failed to show that the person who allegedly made the enquiry was aware about the nature of the query. Consequently, photocopies of the copy of letters could not inspire confidence of the District Election Officer/ Returning Officer.
Further, we find that the petitioner has not filed those letters which he had sent to these persons so as to know of the query he was making about. The petitioner concealed the query, which he was making about. It transpires that the petitioner tried to put some leading question, that too, in a twisted and zig-zag manner. Thus, the papers filed by the petitioner are not clinching to the fact in issue. Consequently, they were not relied upon by respondent no.2.
The petitioner has filed at page 44 of the writ petition a photocopy of the copy of the letter which was not signed by David McCarthy dated 28.11.2001, which is reproduced as under:-
To Jay Kumar UNIVERSITY OF
CAMBRIDGE
At Economic & Technical Consultants inc. Student Records &
Statistics
Your Fax No.001 301 984 7053
From: Davod cCartju
Date 28 November 2001
No. of pages This page only
Subject Sonia Maino
Dear Mr. Kumar
Further to your fax dated 26 November 2001, I am writing to say that we have no record of the above named as having registered as a student at this University under the spelling of the names you have given.
If you have any further information, such as, additional/alternative names, degree awarded, subject studied or the name of the college attended whilst at Cambridge University, we would be happy to recheck our records.
Yours sincerely,
Sd/- Davi McCarthy
Student Records & Statistics
10 Pass Hill
Cambridge CB2 3PN
Telephone 01223 532309
Email-
The next copy of the letter dated 21 November, 2001 filed at page No.45 of the writ petition is reproduced below:-
3019847053
To 9:410013019949063
To Mr. B Rathor
At n/a UNIVERSITY OF CAMBRIDGE
Your Fax No.0208 369 3101 Student Records & Statistics
From: David McCarthy
Date 21 November 2001
No. of pages This page only
Subject Sonia Maino
Dear Mr. Rathor
Further to your fax dated 20 November 2001, I am writing to say that we have no record of the above named as having registered as a student at this University under the spelling of the names you have given.
If you have any further information, such as, additional names, college attended or subjects studied, we would be happy to recheck our records.
Yours sincerely,
Sd/- Davi McCarthy
Student Records & Statistics
10 Pace Hill,
Cambridge C 82 3PN
Telephone 01223 332309
Email-
The copy of third letter dated 21 September, 1992 filed at page No.46 of the writ petition is quoted as below:-
UNIVERSITY OF CAMBRIDGE
Keeper of the Archives UNIVERSITY LIBRARY
WEST ROAD
P.N.R.Zutshi, M.A., Ph.D. CAMBRIDGE CB3 9DR
Assistant Keeper Tele 0223 333000 Ext.3148/
Directline 333149 (Keeper)
333148 (Assistant)
Miss E.S.Leedham –Green, M.A. Ph.D., F.S.A Keeper)
University Archives 21 September: 1992
Mr. A.Ghosh
5720 W. Little York Suit 216
Houston Texas 77091
USA
Dear Mr. Ghosh,
I write in reply to your letter of 14 September addressed to the Office of the Registrar, Sonia Gandhi (nee Maino) was not, in fact, a member of this University but studied at one of the numerous language schools situated in the city. Regrettably, I now forget which, but I do remember that when an enquiry precisely similar to yours arose a year or two ago it transpired that the school in question did not keep any records at all of its past students.
I am sorry to have to send so disappointing reply.
Yours sincerely,
Sd/-
Dr. E.S.Leedham-Green
We have occasion to peruse the papers. It appears that David McCarthy on 28.11.2001 sent reply to Mr. Jay Kumar about Sonia Maino. The photocopy even does not reveal that it has been sent by David McCarthy. It is simply photocopy of the copy of the letter alleged to have been written by David McCarthy. Even the address of Sonia Maino is wanting. There is no explanation from the side of the petitioner as to why the original letters could not be produced and why since 21.9.1992 and onwards the petitioner and his associates remained dormant. On reappraisal of facts, we do not find any reason to rely on inadmissible evidence, which was rightly rejected by the respondent no.2
Again, we find another letter dated 21.11.2001 written by the same person to Mr.B.Rathor unsigned and he has specifically referred that we have no record of the above named as having registered as a student at this University. It was desired in both the letters if you have any further information such as additional names, college attended or subjects studied, we would be happy to recheck our records. Consequently, on the basis of these two letters it cannot be concluded that the information furnished by the respondent No.3 was false or incorrect because the writer of the letter himself wrote to two persons requiring additional information.
We find another letter dated 21.09.1992, that too is a photocopy of the copy of the letter, which has also not been signed by the writer. This is also of no avail to the petitioner because it reveals that the School in question does not keep any record of its past student. Thus, this letter does not connect the educational qualification etc. of respondent No.3. Moreover, we fail to understand why the letter dated 21.09.1992 has been filed with this petition after a lapse of 14 years while it is contended by respondent No.1 that prior to this election, respondent No.3 was contesting election and no such accusation was ever made before the Commission.
The petitioner has not disclosed the identity of these three persons, even their addresses have also not been shown. Photocopies of the copies of the letters, which are not even on stamp pad, without any address leaving space for address at the left, create a reasonable suspicion about the authenticity of these papers. The letter available at page 44 of the writ petition refers about the earlier fact dated 20.11.2001. There is no explanation as to why these documents were not filed and as to why the petitioner has not made any endeavour to verify the contents of the same from the authorities of Cambridge University, even the list of affiliated colleges have not been filed for the year 1965. The petitioner has not furnished any details as to how he came in contact with all these three persons and on which date he could procure these papers from them.
Thus, we find that without any explanation as to why these documents were not filed to contradict the averments made in the nomination papers about the educational qualification, would lead to an impression that the things might not be as they are and that is why there is suppression of facts on this count.
The Court pointedly asked the petitioner as to why these letters were not filed in original but no convincing reply could be made. Neither before the Hon'ble Apex Court nor before this Court any supplementary affidavit has been filed that original documents are missing. Thus, in the aforesaid background we propose to consider the admissibility of these documents in the light of Indian Evidence Act, 1972.
Indian Evidence Act, 1972, Chapter V deals with documentary evidence Sections 61 to 65 are relevant and they read as under:-
“61. Proof of contents of documents.- The contents of documents may be proved either by primary or by secondary evidence.
62. Primary evidence.- Primary evidence means the document itself produced for inspection of the court.
Explanation 1.- Where a document is executed in several parts, each part is primary evidence of the document.
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2.- Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original.
“63. Secondary evidence.- Secondary evidence means and includes-
1. certified copies given under the provisions hereinafter contained;
2. copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
3. copies made from or compared with the original;
4. counterparts of documents as against the parties who did not execute them;
5. oral accounts of the contents of a document given by some person who has himself seen it.
64. Proof of documents by primary evidence.-Documents must be proved by primary evidence except in the cases herein after mentioned.
65. Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition or contents of a document in the following cases-
1. when the originals shown or appears to be in the possession or power-
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or
of any person legally bound to produce it,
and when, after the notice mentioned in Section 66, such person does not produce it;
2. when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
3. when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
4. when the original is of such a nature as not to be easily movable;
5. when the original is a public document within the meaning of Section 74;
6. when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India], to be given in evidence;
7. when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In case (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b),the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents”.
Having regard to the provisions of the Indian Evidence Act, it transpires that the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the document itself produced for the inspection of the Court. On the aforesaid analogy we find that the original documents have not so far been produced for inspection of the Court. Consequently these papers do not fall within the ambit of primary evidence.
Section 63 deals with the secondary evidence. It is not disputed that these papers are not certified copies as given under this provision. We further find that the copies, which are available on the record, are not made from the original by mechanical process, which in themselves ensures accuracy of the copy and compared with such copies. Furthermore, we find that in view of Section 63(1) for want of any attestation, it cannot be presumed that these papers are the copies made from or compared with original. Admittedly, these are not counter-parts of the documents as against the parties who did not execute them. These papers are not based on oral accounts of the contents of a document given by some person who has himself seen it.
Thus, these papers do not fall within the ambit of secondary evidence also. Even if it is presumed that these letters come within the ambit of secondary evidence then Section 65 is attracted. Secondary evidence can only be led in those cases where primary evidence is not available or cannot be given. Certain conditions have been laid down by Section 65 of the Evidence Act, where secondary evidence may be given of the existence, condition or contents of a document in the manner referred to above. In view of Section 65 (a) it is not the case of the petitioner that a document in original is shown or appears to be in possession of a person against whom the document is sought to be proved or it is out of the reach of the petitioner. No effort was made to procure it, who was in possession of those documents. We further find that these papers are not public documents.
Thus, in these circumstances these papers cannot be taken into consideration as secondary evidence. These papers are inadmissible in evidence under the provisions of Indian Evidence Act. Our view is strengthen by a Division Bench decision of this Court in Sri Hemant Kumar Agrahari Vs. Smt. Laskhi Devi [2003(21) LCD 1258], relevant para-6 of which is reproduced below:-
“The wife had produced photostat copy of minutes of panchayat. It is alleged to be signed by father of the husband, brother of the wife and is attested by the witnesses. Moolchand Gupta, PW-3 is one of the witnesses of this document. He has stated that the original was given to the father of the husband. He has also deposed as to what was agreed in the panchayat. Neither the husband, nor any of his witnesses have stated anything about this panchayat. They have also not stated whether father of the husband signed this document or not. Nevertheless the document produced was a photostat copy of the original and secondary evidence. It was not admissible under Section 65 of the Evidence Act unless notice to produce as contemplated under the Evidence Act was given to the other side. There is no evidence that any such notice was given. It seems an inadvertent mistake on part of the counsel for the wife. However, the Photostat copy is inadmissible. But the decree may not be set aside if this finding is supported by other evidence on record.”
Consequently, we find that these papers, which are neither on the letter heads nor the photocopies of the original, but are simply so called copies from original, are available on record. The petitioner has also not furnished any explanation as to why he could not obtain the information from the University concerned and as to why these papers are being used after the year 1991 and 2003 in this case. He has also not obtained any letter from the person from whom he got the copies. Consequently, it appears that the corn has lost in the chaff and consequently there is suppression of material facts throwing light over these papers and thus on this count alone neither the Court can assume them genuine nor worth consideration as they are not covered under the ambit of Chapter V of Indian Evidence Act, 1872.
Yet there is another aspect in this case. The petitioner has filed a copy of the letter sent by him to the Speaker Lok Sabha on May 10, 2002 which reads as under:-
Dr. Subramanian Swamy Ph.D.(Harvard) JANATA PARTY
Mr. Manohar Joshi,
Speaker, Lok Sabha,
Parliament House
New Delhi.
May 10, 2002
Dear Manoharji:
Please accept my congratulations on being elected Speaker. I writ this letter to draw your attention to two pending matters which require your urgent and immediate decision. First, the statues of Muthuramalingam Thevar and Satyamurti are to be unveiled and a date fixed at the earliest since it has been pending for a long time. Second, I had brought to the notice of your predecessor that the Leader of the Opposition Ms. Sonia Gandhi had committed a breach of ethic by falsely claiming in the Lok Sabha’s Who’s Who that she had been educated at the University of Cambridge when in fact she has not studied in any college any where in the world. Necessary documents rebutting her false claim are enclosed in my earlier letter to the Speaker. I had requested that the matter be forwarded to the Chairman of the Ethics Committee for determination of suitable reprimand. This is also pending with your office.
Best regards,
Yours sincerely,
Sd./-
(Subramanian Swamy)
A bare perusal of this letter leaves no room for doubt that the petitioner requested that the matter be forwarded to the Chairman of the Ethics Committee for determination of suitable reprimand on the ground that respondent No.3 had not studied in any college any where in the world. It was also referred that Ms. Sonia Gandhi had committed a breach of ethics by falsely claiming in the ‘Lok Sabha’s who’s who’ that she had been educated at the University of Cambridge. The petitioner has failed to point out the outcome of his letter. Thus, it may be presumed that the matter is still pending before the Speaker of Lok Sabha. The petitioner has not made any request and has also not sought any relief from this Court that Speaker may be directed to look into the matter or to decide the matter pending before him. Consequently, now it is not open for the petitioner to file the instant petition on the ground that Ms. Sonia Gandhi has committed a breach of ethics by falsely claiming that she had been educated at the University of Cambridge.
The petitioner on the basis of news item states that it was mentioned that the word ‘University’ in the Lok Sabha publication was a ‘typographical error’. It is a settled proposition of law that news cannot be relied upon without further corroboration of evidence which is wanting in this case. It is a cardinal principle of law that suspicion howsoever grave may be, it cannot take the shape of proof.
The petitioner has failed to prove beyond the point of suspicion that a respondent No.3 deliberately made a false statement or made a false averment about her educational qualification. The onus of proof lies over the petitioner to establish the case against respondent No.3, for which at present he has no locus. It further appears that the petitioner has made allegation without proving the same. Thus, on the basis of the papers available on the record, it transpires that the petitioner might have filed the petition with collateral purpose without having any lis in the matter.
As regard to the argument of the petitioner that the respondent no.3 has given a wrong impression giving an impression that she had studied in Cambridge University and obtained high education from there. In this connection, we would like to reproduce the entry made by the respondent No.3 in the form of declaration:
“Three years course in foreign languages (English and French) completed in 1964 at Institute Santa Teresa, Via Santra Teresa, 10 Turin
ii. Certificate in English from Lennox Cook School, University of Cambridge, completed in 1965.
Sd-Sonia Gandhi
After looking to the above contents, it transpires that the respondent No.3 had not claimed that she actually studied in the University of Cambridge. It appears that she got certificate in English from Lennox Cook School, University of Cambridge, completed in 1965. It does not mean that respondent No.3 ever said that she was a student of University of Cambridge. She has mentioned that she obtained certificate in English from Lennox Cook School, which is associated with University of Cambridge and she completed certificate course in 1965. From the above language, it can be easily concluded that respondent No.3 obtained a certificate from Lennox Cook School. The petitioner has failed to furnish any evidence worth the name that Lennox Cook School is not available anywhere or respondent No.3 has not obtained certificate from there and it was not affiliated or associated with the University of Cambridge in the year 1965.
We are not convinced with the contention of the petitioner on the point that there is any misrepresentation about educational qualification because there is a complete vacuum of evidence to establish that Lennox Cook School was not situated or was not providing educational facilities to students in the year 1965. Once the existence of Lennox Cook School is not doubted and no record could be obtained from Lennox Cook School, it cannot be convinced that Lennox Cook School, was not in existence or it was not imparting educational facilities to student. What was the status of the Lennox Cook School in the year 1965 has to be established by the petitioner. He has failed to establish that the School was not affiliated with the University of Cambridge in the year 1965.
We further find that petitioner was duty bound to check from the University of Cambridge about the status of Lennox Cook School in the year 1965 and should have also obtained a certificate to this effect that respondent No.3 has never studied there. The Court has to peep into the matter on the basis of the record produced by the petitioner. The petitioner has also not filed any admissible documentary evidence before respondent No.2 and also before this Court to establish this contention.
The order dated 23.10.2004 (Annexure No.1) passed by the Returning Officer/District Election Officer is a speaking and a reasoned order. There is nothing on record to show any infirmity or illegality on the facts before us. The petitioner has failed to establish that on the basis of material on record, the Court may conclude that the impugned order Annexure No.1 was passed without any legal justification or was passed in abuse of process of law. In our opinion, the impugned order was passed after considering the entire material on record and after having considered the submission of the petitioner after providing sufficient opportunity to the petitioner to plead his case. It is not the case of the petitioner that respondent No.2 passed the order without considering the material, which was brought to respondent No.2. The petitioner has also not produced certified copies of the material or other relevant material, which were taken into consideration by respondent No.2. Consequently, at this stage, it cannot be said that the respondent No.2 exercised the discretion with malafide intent. The petitioner has also failed to establish that the Returning Officer exercised his discretion contrary to law and even before this Court the petitioner has failed to establish a prima facie case that the information furnished by the respondent No.3 was incorrect much less false and fraudulent.
The petitioner has sought the relief of mandamus against respondent No.2. We find that the respondent No.2 being a public authority has exercised the discretion vested in him by law. The petitioner wants reappraisal of evidence and it also indicates that this Court under Article 226 should be converted into a court of appeal to reappraise the entire issue. In this context, we find that the Hon'ble Apex Court in the case of Vice Chancellor, Utkal University and others V. S.K.Ghosh and others, AIR 1954 S.C 217 (Vol.41, C.N.49) considered akin situation. In this case, the Hon'ble Apex Court propounded that where a public authority exercised the discretion vested in it under the law, then the High Court should not constitute itself into a court of appeal. Thus it is not the function of this Court to substitute its own view or discretion for that of the persons to whose judgment the matter in question is entrusted by the law.
It is a settled proposition that a matter under Section 195 Cr.P.C. is primarily for the authorities who hear the application and its discretion is not to be interfered. The constitutional Bench of Hon'ble Apex Court in the case of The Assistant Collector of Customs, Bombay and another Vs. Behramji Merwanji Damania. AIR 1970 S.C. 962 at para 13, held that the High Court was not justified in interfering with the discretion of the Magistrate. It has observed that except for very good reasons, the High Court should not interfere with the discretion conferred on the Trial Courts in the matter of summoning documents.
The Hon'ble Apex Court had an occasion to consider the scope of discretion exercised by a public authority in the matter of U.P. State Road Transport Corporation and another V. Mohd. Ismail and others, (1991) 3 Supreme Court Cases 239, wherein at page 12 it held as under:-
12. The High Court was equally in error in directing the Corporation to offer alternative job to drivers who are found to be medically unfit before dispensing with their services. The court cannot dictate the decision of the statutory authority that ought to be made in the exercise of discretion in a given case. The court cannot direct the statutory authority to exercise the discretion in a particular manner not expressly required by law. The court could only command the statutory authority by a writ of mandamus to perform its duty by exercising the discretion according to law. Whether alternative job is to be offered or not is a matter left to the discretion of the competent authority of the Corporation and the Corporation has to exercise the discretion in individual cases. The court cannot command the corporation to exercise discretion in a particular manner and in favour of a particular person. That would be beyond the jurisdiction of the court.
Thus as per the law laid down by the Hon'ble Apex Court, this Court cannot dictate the decision of the statuary authority which should be made in the exercise of discretion in a given case. The Court cannot direct the statutory authority to exercise the discretion in a particular manner not expressly required by law. Consequently, the relief is not tenable in the eyes of law.
Thus, if the petitioner’s contention is accepted then this Court has to exercise its discretion in a particular manner, which is not permissible due to express provisions of law as laid down by the Hon'ble Apex Court. The Hon'ble Apex Court has given a look into such type of cases in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622, wherein a catena of judgments have been relied upon including the judgment of Vice Chancellor Utkal University Vs. S.K.Ghosh (supra) as well as in Tata Cellular V. Union of India. For the sake of convenience relevant paragraphs of the report are reproduced as below:-
“25. This principle was reiterated in Tata Cellular V. Union of India in which it was, inter alia, laid down that the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made particularly as the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The Court pointed out that the duty of the Court is to confine itself to the question of legality. Its concerned should be:
1. Whether a decision-making authority exceeded its powers?
2. committed an error of law;
3. committed a breach of the rules of natural justice.
4. reached a decision which no reasonable tribunal would have reached; or
5. abused its powers.
26. In this case, Lord Denning was quoted as saying (SCC pp. 681-82, paras 83)
“Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the courts will not themselves take the place of the body to whom Parliament has entrusted the decision. The courts will not themselves embark on a rehearing of the matter. See Healey V. Minister of Health.”
27. Lord Denning further observed as under: (p.682)
“If the decision-making body is influenced by considerations which ought not to influence it; or fails to take into account matters which it ought to take into account, the court will interfere. See Padfield V. Minister of Agriculture, Fisheries and Food
28. In Sterling Computers Ltd. V. M & N Publications Ltd. it was pointed out that while exercising the power of judicial review, the Court is concerned primarily as to whether there has been any infirmity in the decision-making process? In this case, the following passage from Professor Wade’s Administrative law was relied upon: (SCC p.457, para 17)
“The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended.”
29. It may be pointed out that this principle was also applied by Professor Wade to quashi-judicial bodies and their decisions. Relying upon the decision in R. V. Justice of London.Professor Wade laid down the principle that where a public authority was given power to determine a matter, mandamus would not lie to compel it to reach some particular decision.
30. A Division Bench of this Court comprising Kuldip Singh and B.P. Jeevan Reddy, JJ. in U.P. Financial Corpn. V. Gem Cap (India) (P) Ltd., (1993) 2 SCC 299 observed as under: (SCC pp.306-07, para 11)
“11. The obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak V. Union of India, (1969) 2 SCC 262. Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have ‘a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred’. (Lord Diplock in Secy. of State for Education and Science V. Tameside Metropolitan Borough Council, 1977 AC 1014 AC at p. 1064.) The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene.”
Thus, from the aforesaid pronouncement of law, it is crystal clear that the Court cannot substitute its own wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law, and the review cannot be permitted and if a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The Court pointed out that the duty of the Court is to confine itself to the question of legality.
Again the Hon'ble Apex Court in Indian Railway Construction Co. Ltd., Vs. Ajay Kumar, AIR 2003 SC 1843, has held in para 18 as under:-
“18. Therefore, to arrive at a decision on “reasonableness” the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the Four Corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.
The Hon'ble Apex Court held that a decision could be one of many choices open to the authority i.e. the public authority which has to exercise its discretion like the present one, but the Court would not substitute its view. In this context, we find that the respondent No.2 has already weighed the material on record and passed a valid speaking order after providing opportunity of being heard to the petitioner. Consequently, the discretion so exercised cannot be challenged and the petitioner is not entitled to make a request that this Court should substitute its view against the discretion that has been exercised by respondent No.2. Consequently, we are not inclined to issue any direction as sought by the petitioner to the respondent No.2 to exercise the discretion in the manner as suggested by the petitioner.
It may be added that the petitioner has further sought a relief in the nature of mandamus commanding the respondents No.1 and 2 to formally institute a complaint case under Section 195 CrPC before the competent court against respondent No.3.
It is a well settled principle that a mandamus can be issued to an authority to compel it to perform its statutory obligations but it cannot be issued to compel him to pass an order in violation of the statutory provision, but it is also a settled proposition of law that High Court cannot act like an appellate court to re-appraise the evidence.
A bare reading of the impugned order does not reflect that the finding arrived at suffers from any apparent error. Consequently, this Court while exercising supervisory jurisdiction cannot act like an appellate court to re-appreciate or re-examine the evidence as suggested by the petitioner.
Let us read Section 195 of the Code of Criminal Procedure. “195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance-
(a)(i) of any offence punishable under ss 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
ii. of any abatment of, or attempt to commit, such offence, or
iii. of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, ss 193 to 196 (both inclusive), 199,200,205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or in relation to, any proceeding in any Court, or
(ii) of any offence described in s 463, or punishable under s 471, s 475 or s 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or,
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abatement of, any offence specified in sub-cl (i) or sub-cl(ii),
except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of sub-s (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-s (1), the term “Court’ means, a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-s (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that-
1. where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
2. where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
The purpose and object of the bar against cognizance of private complaints in regard to the offences mentioned in s. 195 (1)(b) is both to save the accused from vexatious or baseless prosecution spited by feelings of vindictiveness on the part of the private complainant. Section 195 is imperative.
Thus, Section 195 carves out an exception to the general law regarding the locus standi of the complainant to file a complaint. Thus only public authority which was a target of the purported false affidavit only has locus standi to file a complaint and no other person can approach the Court for the same. No private person can be allowed to force the Court or public authority concerned to become complainant to initiate criminal prosecution for the alleged offence of perjury. Section 195 clearly vests the public servant a discretion to file a complaint under Section 195 before the court of competent jurisdiction on being satisfied that offences under Section 177, 181, 191 and 193 have been committed by filing any document before him which is forged or perjured or fraudulent. In fact if a public servant may have suspicion about the correctness of an affidavit filed before him, he will still have discretion to file or not to file a complaint and initiate prosecution of the person concerned.
Thus, this Section does not cast any positive legal duty upon the public servant to launch a prosecution. A plain reading of the Section reveals that it is an enabling clause, which permits the public servant to file a complaint if he considers it expedient. Section 195 is also a restricted provision as the same puts a bar on every person other then the public servant concerned from initiating criminal proceedings.
Thus, if any direction is issued as suggested by the petitioner, it would amount to conferring a private person the right under Section 195 indirectly. It is a settled proposition of law whatever cannot be done directly can also not be achieved indirectly. The petitioner has informed the public authority concerned, but after furnishing the information to the respondent No.2, he lost any locus in further proceedings and it is solely for the public authority i.e. respondent No.2 to determine as to whether a case is made out under Section 195 Cr.P.C. or not.
We would like to add here that under the Law of Contempt a person even if aggrieved informs the Court about the alleged contempt, he looses his locus standi and it is a matter between the Court and alleged contemnor and the informant has no right to be heard in the contempt proceedings. Consequently after furnishing the information to respondent No.2 the petitioner has lost his locus. Petitioner has already informed the respondent No.2 about filing false affidavit by respondent No.3 and the evidence, which he had with him, must have been furnished by him, thereafter he cannot be permitted to claim any right to challenge the decision of the Returning Officer to file or not to file a complaint case. We further find that a public servant under Section 195 has to set the criminal law in motion. Section 195 does not provide any power beyond its scope to entertain a complaint by a private person or to consider any such complaint. The statute has not provided any power to the complainant to obey any direction against a public servant to take any appropriate action in the matter. In order to file a complaint under Section 195 Cr.P.C. personal satisfaction of the public servant as to the culpability of the accused is sine quo non for such a move. On the contrary, he cannot be compelled to make allegations against someone when in his own judgment no case of perjury or fraud existed. There is a specific finding to this effect in Annexure No.1 and consequently for want of any evidence it cannot be assailed subsequently before us.
This Court does not find any convincing reason that respondent No.2 has failed to exercise its discretion on the basis of material on record in forming the opinion about non-prosecution of respondent No.3, accordingly, the discretion so exercised not to initiate any criminal proceedings at this stage at the behest of the petitioner, cannot be covered under the abuse of process of law. It is also a settled proposition of law that Courts do not issue direction to public authorities to act in a particular manner. We are unable to agree with the contention of the petitioner that this Court should issue direction to respondent No.2 to file a complaint, which would indirectly amount that this Court became the complainant in this matter. We are of the firm view that no public servant can be compelled to act in a particular manner. In the surrounding circumstances, the petition seeking mandamus against respondent No.2 is not maintainable. In this context, we would like to refer the law as laid down by the Hon'ble Apex Court in Lalji Haridas Vs. The State of Maharashtra and another AIR 1964 S C 1154, wherein their Lordships’ considered about filing of complaint under Section 195 Cr.P.C. Relevant para 6 is quoted below:-
“6. That takes us to Section 195 of the Code of Criminal Procedure. It is well known that Section 195 provides for an exception to the ordinary rule that any person can make a complaint in respect of the commission of an offence triable under the Cr.P.C. Section 4 (h) of this Code defines a “complaint” as meaning the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include the report of a police officer. This definition shows that any person can make a complaint in respect of the commission of an offence, Section 190 requires that the Magistrate to whom a complaint has been made should take cognizance of the said complaint, subject to the provisions of the said section. Thus, the general rule is that any person can make a complaint, and S. 195 provides for an exception. Section 195(1) (b) with which we are concerned, provides that no Court shall take cognizance of any offence punishable under the Sections therein mentioned, when such offence is alleged to have been committed in or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; amongst the sections mentioned are Ss. 193 and 228 I.P.C. The effect of this provision is that if an offence is alleged to have been committed either under S. 193 or S. 228 I.P.C., and it appears that the said offence was committed in relation to any proceeding in any Court, it is only if the said Court, or the Court to which it is subordinate, makes a complaint in that behalf that cognizance will be taken of the said complaint. A person cannot make a complaint in respect of the alleged commission of any of the offences specified in S. 195(1)(b); that is its plain effect.
Further in Patel Laljibhai Somabhai Vs. The State of Gujrat AIR 1971 S C 1935, the Hon'ble Apex Court at para 10 held as under:-
“10. Broadly speaking we are inclined to agree with the reasoning of the Allahabad Full Bench in Kushal Pal Singh’s case, ILR 53 All 804 = (AIR 1931 All 443) (FB). This in our opinion reflects the better view. The purpose and object of the Legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in Section 195 (1) (b) and (c) is both to save the accused person from vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of the private complaints to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the Courts in which forged documents are produced or false evidence is led and the conclusions of the criminal Courts dealing with the private complaint. It is for this reason as suggested earlier, that the Legislature has entrusted the Court, whose proceedings had been the target of the offence of perjury to consider the expediency in the larger public interest of a criminal trial of the guilty party.
Thus, in view of the proposition of law laid down in the aforesaid cases, we do not find any convincing reason to compel the authority concerned to initiate any criminal proceedings.
The Hon'ble Apex Court has already observed that the court should ask one question in every such case: “is what something more that would meet the word in this case”. In this background, we find that the petitioner has relied over the decision rendered in the case of Vineet Narain and others Vs. Union of India and another 1996 SCC (Cri) 264, wherein C.B.I. and Revenue Authorities were directed to investigate in Hawala transactions. In this case, we find that there is no averment in the petition that any cognizable case is made out, which requires any investigation. Consequently, the reference of the aforesaid case has no bearing on the facts in issue.
The petitioner has further referred the case of Anukul Chandra Pradhan Vs. Union of India & others, 1996 SCC (Crl.) 1338 in his petition. In this case, we find that the Hon'ble Apex Court considered the scope of fair, expedient and open trial. Their Lordships at para 7 held as under :-
“A note of caution may be appropriate. No occasion should arise for any impression that the publicity attaching to these matters has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of the accused unless fond guilty at the end of the trial. This requirement, undoubtedly has to be kept in view during the entire trial. It is reiterated, that any observation made by this Court for the purpose of the proceedings pending here has no bearing on the merits of accusation, and is not to influence the trial in any manner. Care must be taken to ensure that the credibility of the judicial process is not undermined in any manner.”
Having regard to the facts in issue, we find that the matter relates to the criminal trial while the case in hand is not the case that any trial is going on. The Hon'ble Apex Court has considered that according to the principles of jurisprudence, the presumption of innocence of the accused should have a paramount consideration and the court should consider the merit of accusation. Consequently, we do not find that the case law relied upon, in any way apply to the facts of this case, but it is apparent that publicity attached to such matter should not affect the essentials of fair trial including the presumption of innocence. We have also gone through the judgment of the Hon'ble Apex Court in the case of Union of India and other Vs. Sushil Kumar Modi and others (1997) 4 SCC 770, wherein Fodder Scam Case of Bihar, investigation was entrusted to C.B.I., their Lordship in para-7 held as under:-
“So far as portion ‘B’. as quoted above, of the order dated 13.11.1996 is concerned, it is sufficient for us to observe that the High Court would take into account the fact that the personal presence of the Director, C.B.I. in the High Court may be required only when it is essential for a purpose which cannot be served by the presence of the other officers of the C.B.I. who normally represent the C.B.I. at the hearings in the High Court. In view of the enumerous cases pending in different High Courts, the Director, C.B.I. personally may not be left with sufficient time from his official duties to appear personally at the hearings of these matters in the High Courts. However, it is the duty of the Director , C.B.I. to ensure proper representation on his behalf in the High Court so that the High Court gets all the assistance needed at the hearings.”
Having regard to the facts in issue, law has no application on the facts of the case.
It is, therefore, of utmost necessity that if the petitioner approaches writ court under Article 226, must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything. Prerogative remedy is not a matter of course. While exercising the extra ordinary powers, the Court would bear in mind the conduct of the party, who invokes the jurisdiction of the Court. This rule has been evolved in large public interest.
Considering the facts in its entirety and the proposition of law, we are not inclined to show any interference under Article 226 of the Constitution and the writ petition lacks merits.
Accordingly, the writ petition is dismissed.
Costs easy.
GHF/-
12th January , 2007
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