GHANSHYAM UPADHYAY versus STATE OF U.P. & ORS.

[2020] 6 S.C.R. 983

GHANSHYAM UPADHYAY

STATE OF U.P. & ORS.

(Criminal Miscellaneous Petition No. 70798/2020

(Writ Petition (Criminal) No. 177 of 2020)

AUGUST 19, 2020

[S. A. BOBDE, CJI, A. S. BOPANNA AND

V. RAMASUBRAMANIAN, JJ.]

Inquiry:

Commission of Inquiry – Constitution of – By Supreme Court– To investigate the alleged encounter of ‘Vikas Dubey’ – Applicationby the petitioner seeking scrapping of the Commission alleging‘conflict of interest’ and ‘bias’ against the two of the members of theCommission – Held: The basis for allegation was newspaper report– The newspaper report without further proof has no evidentiaryvalue – The present case is fact-finding exercise – The Commissionhas been constituted under Commissions of Inquiry Act, which isempowered merely to investigate, record its findings and make itsrecommendations – The recommendations are not enforceableproprio vigore – There would be sufficient safeguard to the mannerin which the inquiry would be held.

Dismissing the application, the Court

HELD: 1.1. The entire basis for making the allegations ascontained in the miscellaneous petition is an Article relied on bythe petitioner said to have been published in the newspaper.There is no other material on record to confirm the truth orotherwise of the statement made in the newspaper. This Courtwill have to be very circumspect while accepting such contentionsbased only on certain newspaper reports. The newspaper itemwithout any further proof is of no evidentiary value. [Para 6][987-F-G]

Kushum Lata v. Union of India & Ors. (2006) 6 SCC180 : [2006] 3 Suppl. SCR 462; Rohit Pandey v. Unionof India (2005) 13 SCC 702 – relied on.

A1.2 In the instant case, the Chairman and Member of theCommission had held high Constitutional positions and whilemaking allegations, the petitioner has based his claim only onthe newspaper report and the manner in which the avermentsare made in the application is unacceptable. In any case, theallegation that the brother of the chairman of the Commission isBa legislator belonging to or supporting the party in power andthat the member of the Commission is related to the IG of Policeare not sufficient to come to the conclusion that it would lead tobias or conflict of interest since there is no indication whatsoeveras to the nature of influence such of those relatives would beCable to exert and as to whether they are in dominant position.[Paras 8-9][988-C-E]

1.3 In the present case, the Petitioner is lawyer byprofession who practices in Mumbai and has come up by way ofPublic Interest Litigation. Therefore, the allegations of bias madeDby him against the members of the Commission merely on thebasis of newspaper reports and nothing more, are liable to berejected outright. [Para 14][989-H; 990-A]

Ranjit Thakur v. Union of India & Ors. (1987) 4 SCC611 : [1988] 1 SCR 512 – distinguished.

EK. Vijaya Bhaskar Reddy v. Government of AndhraPradesh, AIR 1996 AP 62 – referred to.

2. The Court is dealing here with an Inquiry Commissionconstituted under the Commissions of Inquiry Act, 1952 whoseFfunctions and role are by now well defined. Commissionconstituted under the Commissions of Inquiry Act is empoweredmerely to investigate, record its findings and make itsrecommendations. These recommendations are not enforceableproprio vigore. The proceedings in the present case are not aninter se determination of legal issues between the parties but aGfact-finding exercise. The petitioner herein is an advocate whopractices law in Mumbai, Maharashtra and is in no way connectedto the incident in question which took place in U.P. However, thepetition filed by him in public interest was accepted and theCommission of Inquiry consisting of persons who had held highHposition has been constituted. The enquiry held would be in publicdomain and the petitioner has already been granted the liberty ofparticipating therein. The report of the enquiry is ordered to befiled in the petitions which were filed before this Court. Therefore,there would be sufficient safeguard to the manner in which theinquiry would be held. The petitioner has been raisingunnecessary apprehensions and repeated applications are beingfiled which in fact is hampering the process of inquiry. [Paras 10and 15][988-F-G; 990-C-E]

Ram Krishna Dalmia v. Justice S. R. Tendolkar [1959]SCR 279; State of Karnataka v. Union of India (1977)4 SCC 608 : [1978] 2 SCR 1; Sham Kant v. State ofMaharashtra (1992) 2 Suppl. SCC 521 – relied on.

Case Law Reference

CRIMINAL ORIGINAL JURISDICTION: CRL.M.P. No.70798/2020 in Writ Petition (Criminal) No. 177 of 2020.

Under Article 32 of the Constitution of India

Tushar Mehta, SG, K.M. Nataraj, ASG, Ms. Garima Prashad,Prashant Singh, Shiv Nath Tilhari, Rajat Nair, Kanu Agrawal, ArvindKumar Sharma, Ms. Aparna Bhat, Ms. Anupama Ngangom, Advs. forthe appearing parties.

Petitioner-in-person.

AThe following Order of the Court was passed:

1. The petitioner in this Criminal Miscellaneous Petition/applicationis the petitioner in W.P (Crl.) No.177/2020. The said writ petition wasfiled under Article 32 of the Constitution of India, in the nature of publicBinterest seeking for issue of Writ of Mandamus and direct the respondentNos.1 to 3 in the writ petition to initiate action with regard to thedestruction of residential building and other properties of accused –Vikas Dubey and to safeguard the life of the accused. Before the petitionwas taken up for consideration certain other developments had occurred,Cinasmuch as the said Vikas Dubey was killed by the police in an allegedencounter. Along with the said writ petition, certain other writ petitionswhich were also filed in public interest seeking for an appropriate enquiryin that regard were tagged. All the related writ petitions were taken upfor consideration together. The State Government in reply filed to thesaid writ petitions, apart from referring to the other aspects of the matterDhad also indicated that the Government having taken serious cognizanceof all the events, apart from constituting Special Investigation Teamhad also constituted Commission of Inquiry under the Commission ofInquiries Act, 1951 headed by former Judge of Allahabad High Court.In that regard it is to be noted that Shri Justice Shashikant Agrawal, aEformer Judge had been appointed.

2. In the course of the proceedings before this Court, based on asuggestion made by this Court, the State Government had undertakenthe exercise to expand the composition of the Commission. Accordingly,in addition to the former High Court Judge who had been appointed theFState Government suggested the name of Dr. Justice B.S. Chauhan, aformer Judge of this Court to be the Chairman and Mr. K.L. Gupta, IPS,Former Director General of Police to be Member. This Court havingconsidered it appropriate had through the order dated 22.07.2020 acceptedthe constitution of the Commission of Inquiry in the said manner and thewrit petition was directed to be listed along with the report of theGCommission. The petitioners were also granted the liberty of applying tothe Inquiry Commission to be heard in the matter.

3. When this is the position the instant criminal miscellaneouspetition is filed by the petitioner seeking that the Judicial Commissionconstituted by the State be scrapped and SIT as sought by the petitionerH

be constituted by this Court to carry out investigation on all issues raisedby the petitioner. The said prayer is made by the petitioner alleging conflictof interest and likely bias on the part of the Chairman, Dr. Justice B.S.Chauhan and Shri K.L. Gupta, the Member. The petitioner in that regardhas relied upon an Article published in “The Wire” dated 29.07.2020.4. We have heard the petitioner-in-person and perused the petitionpapers.

5. At the outset it is necessary to notice that the petitioner hereinhad filed the applications in I.A. No.68207/2020 and I.A. No.67940/2020 after the constitution of the Inquiry Commission raising certainobjections with regard to Shri K.L. Gupta being the Member of theCommission since according to the petitioner he had made certaincomments in favour of the police in the interview given to the media.This Court having considered the same and on not finding it objectionable,dismissed the application through the order dated 28.07.2020 holding theapplication to be devoid of merits. Despite the same, the very samecontentions are urged in the instant application as well and has alsoraised an additional contention that the said Shri K.L. Gupta is related toShri Mohit Agarwal, the IG of Kanpur Zone. Further, objection is raisedto the continuation of Dr. Justice B.S. Chauhan as the Chairman of theCommission since the news report relied on by the petitioner states thathis brother and relative are legislators from the Bhartiya Janata Partywhich runs the Government in Uttar Pradesh.

6. As noted, the entire basis for making the allegations as containedin the miscellaneous petition is an Article relied on by the petitioner saidto have been published in the newspaper. There is no other material onrecord to confirm the truth or otherwise of the statement made in thenewspaper. In our view this Court will have to be very circumspectwhile accepting such contentions based only on certain newspaper reports.This Court in series of decisions has repeatedly held that the newspaperitem without any further proof is of no evidentiary value. The said principlelaid down has thereafter been taken note in several public interestlitigations to reject the allegations contained in the petition supported bynewspaper report. It would be appropriate to notice the decision in thecase of Kushum Lata vs. Union of India & Ors. (2006) 6 SCC 180wherein it is observed thus, “…. It is also noticed that the petitionsare based on newspaper reports without any attempt to verify theirauthenticity. As observed by this Court in several cases, newspaper

Areports do not constitute evidence. petition based on unconfirmednews reports, without verifying their authenticity should not normallybe entertained. As noted above, such petitions do not provide anybasis for verifying the correctness of statements made andinformation given in the petition.”

B7. This Court in the case of Rohit Pandey vs. Union of India(2005) 13 SCC 702 while considering the petition purporting to be inpublic interest filed by Member of the Legal Fraternity had come downheavily on the petitioner since the said petition was based only on twonewspaper reports without further verification.C8. In the above backdrop, in the instant case it is to be noticed thatthe Chairman and Member of the Commission had held highConstitutional positions and while making allegations the petitioner hasbased his claim only on the newspaper report and the manner in whichthe averments are made in the application is unacceptable.D9. In any case, the allegation that the brother of the chairman ofthe Commission is legislator belonging to or supporting the party inpower and that the member of the Commission is related to the IG ofPolice (Kanpur Range) are not sufficient to come to the conclusion thatit would lead to bias or conflict of interest since there is no indicationwhatsoever as to the nature of influence such of those relatives wouldEbe able to exert and as to whether they are in dominant position.

10. It must be remembered that we are dealing here with an InquiryCommission constituted under the Commissions of Inquiry Act, whosefunctions and role are by now well defined. As held by the ConstitutionBench in Ram Krishna Dalmia vs. Justice S. R. Tendolkar, 1959FSCR 279, commission constituted under the Commissions of InquiryAct, 1952 is empowered merely to investigate, record its findings andmake its recommendations. These recommendations are not enforceableproprio vigore. The view taken in Ram Krishna Dalmia, wasreinforced by larger bench in State of Karnataka vs. Union of India,G(1977) 4 SCC 608. In fact, this Court went in Sham Kant vs. State ofMaharashtra, 1992 Suppl. (2) SCC 521, to the extent of holding thatthe findings of the Inquiry Commission are not binding on the Court,while dealing with an appeal arising out of conviction and sentence of apolice officer. The police officer who was the appellant before this Courtin the said case sought to rely upon the findings of the Inquiry CommissionHthat the victim of custodial violence could have sustained injuries prior to

his arrest. But this Court refused to rely upon the findings of the InquiryCommission to overturn the conviction of the police officer.

11. In K. Vijaya Bhaskar Reddy vs. Government of AndhraPradesh, AIR 1996 AP 62, Division Bench of the Andhra PradeshHigh Court had an occasion to deal with the challenge to the appointmentof one-man Commission of Inquiry under the Commissions of InquiryAct, 1952. One of the grounds of challenge was bias on the part of theappointee. After pointing out that bias by interest which disqualifies aJudge, may fall into two broad classes namely, (i) bias arising out ofpecuniary interest, and (ii) bias arising out of personal interest in theoutcome, on account of the Judge’s relationship with one of the parties,the Division Bench of the Andhra Pradesh High Court quoted Masseyfrom his Treatise on Administrative Law to the following effect:“personal bias arises from certain relationship equation betweenthe deciding authority and the parties which incline himunfavourably or otherwise on the side of one of the parties beforehim”.

12. Though contention was raised in K. Vijaya Bhaskar Reddythat the principle has no application to the proceedings before an InquiryCommission, which are basically inquisitorial and not judicial or quasi-judicial or adversarial, the Division Bench of the Andhra Pradesh HighCourt held that the duty to act fairly and impartially flowed out of theprinciples of natural justice. Therefore, the Andhra Pradesh High Courtupheld the right of the petitioner therein to raise the plea of bias. However,the Court held that to sustain plea of reasonable apprehension of bias,(i) there must be cogent, uncontroverted and undisputed material, and(ii) the court cannot go by vague, whimsical and capricious suspicion.Applying these principles, the Andhra Pradesh High Court rejected thechallenge made by former Chief Minister of the state, to the appointmentof retired Judge as one-man Commission to inquire into certain allegedirregularities committed by him while in office.

13. Thus, even in case where the petitioner before the Courtwas person against whom the Commission of Inquiry was constituted,the Court applied strict standards, for testing the allegation of personalbias against the Inquiry Commission.

14. In the case on hand, the Petitioner is lawyer by professionwho practices in Mumbai and has come up by way of Public Interest

ALitigation. Therefore, the allegations of bias made by him against themembers of the Commission merely on the basis of newspaper reportsand nothing more, are liable to be rejected outright.

15. The petitioner has relied on the decision of this Court in thecase of Ranjit Thakur vs. Union of India & Ors. (1987) 4 SCC 611 toBcontend that this Court held that the Likelihood of bias in the mind of theparty would be sufficient to complain. The facts in the said case led tosuch conclusion inasmuch as the nature of involvement of respondentNo.4 in punishing the appellant in that case and thereafter participatinglead to bias and that position was accepted. The facts involved hereinare entirely different. The proceedings herein are not an inter seCdetermination of legal issues between the parties but fact-findingexercise. The petitioner herein is an advocate who practices law inMumbai, Maharashtra and is in no way connected to the incident inquestion which took place in U.P. However, the petition filed by him inpublic interest was accepted and the Commission of Inquiry consistingDof persons who had held high position has been constituted. The enquiryheld would be in public domain and the petitioner has already been grantedthe liberty of participating therein. The report of the enquiry is orderedto be filed in the petitions which were filed before this Court. Therefore,there would be sufficient safeguard to the manner in which the inquirywould be held. We find that the petitioner has been raising unnecessaryEapprehensions and repeated applications are being filed which in fact ishampering the process of inquiry.

16. For all the aforestated reasons we are of the opinion that theinstant petition/application is without any merit and the same is accordinglydismissed.

Kalpana K. Tripathy

Petition/Application dismissed.