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Supreme Court of India
Ghanshyam Upadhyay vs The State Of Uttar Pradesh on 19 August, 2020Author: Hon’Ble The Justice
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
CRL. M.P. No.70798/2020
IN
WRIT PETITION (CRIMINAL) NO. 177 OF 2020
Ghanshyam Upadhyay .… Petitioner(s)
Versus
State of U.P. & Ors. …. Respondent(s)
ORDER
1. The petitioner in this Criminal Miscellaneous
Petition/application is the petitioner in W.P (Crl.)
No.177/2020. The said writ petition was filed under Article
32 of the Constitution of India, in the nature of public
interest seeking for issue of Writ of Mandamus and direct
the respondent Nos.1 to 3 in the writ petition to initiate
action with regard to the destruction of residential building
and other properties of accused –Vikas Dubey and to
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2020.08.19
15:50:38 IST
safeguard the life of the accused. Before the petition was
Reason:
taken up for consideration certain other developments had
WP (Crl) No.177/2020
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occurred, inasmuch as the said Vikas Dubey was killed by
the police in an alleged encounter. Along with the said writ
petition, certain other writ petitions which were also filed in
public interest seeking for an appropriate enquiry in that
regard were tagged. All the related writ petitions were taken
up for consideration together. The State Government in a
reply filed to the said writ petitions, apart from referring to
the other aspects of the matter had also indicated that the
Government having taken serious cognizance of all the
events, apart from constituting a Special Investigation Team
had also constituted a Commission of Inquiry under the
Commission of Inquiries Act, 1951 headed by a former
Judge of Allahabad High Court. In that regard it is to be
noted that Shri Justice Shashikant Agrawal, a former Judge
had been appointed.
2. In the course of the proceedings before this Court,
based on a suggestion made by this Court, the State
Government had undertaken the exercise to expand the
composition of the Commission. Accordingly, in addition to
the former High Court Judge who had been appointed the
State Government suggested the name of Dr. Justice B.S.
WP (Crl) No.177/2020
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Chauhan, a former Judge of this Court to be the Chairman
and Mr. K.L. Gupta, IPS, Former Director General of Police
to be a Member. This Court having considered it
appropriate had through the order dated 22.07.2020
accepted the constitution of the Commission of Inquiry in
the said manner and the writ petition was directed to be
listed along with the report of the Commission. The
petitioners were also granted the liberty of applying to the
Inquiry Commission to be heard in the matter.
3. When this is the position the instant criminal
miscellaneous petition is filed by the petitioner seeking that
the Judicial Commission constituted by the State be
scrapped and a SIT as sought by the petitioner be
constituted by this Court to carry out investigation on all
issues raised by the petitioner. The said prayer is made by
the petitioner alleging conflict of interest and likely bias on
the part of the Chairman, Dr. Justice B.S. Chauhan and
Shri K.L. Gupta, the Member. The petitioner in that regard
has relied upon an Article published in “The Wire” dated
29.07.2020.
WP (Crl) No.177/2020
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4. We have heard the petitionerinperson and perused
the petition papers.
5. At the outset it is necessary to notice that the
petitioner herein had filed the applications in I.A.
No.68207/2020 and I.A. No.67940/2020 after the
constitution of the Inquiry Commission raising certain
objections with regard to Shri K.L. Gupta being the Member
of the Commission since according to the petitioner he had
made certain comments in favour of the police in the
interview given to the media. This Court having considered
the same and on not finding it objectionable, dismissed the
application through the order dated 28.07.2020 holding the
application to be devoid of merits. Despite the same, the
very same contentions are urged in the instant application
as well and has also raised an additional contention that the
said Shri K.L. Gupta is related to Shri Mohit Agarwal, the IG
of Kanpur Zone. Further, objection is raised to the
continuation of Dr. Justice B.S. Chauhan as the Chairman
of the Commission since the news report relied on by the
petitioner states that his brother and relative are legislators
WP (Crl) No.177/2020
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from the Bhartiya Janata Party which runs the Government
in Uttar Pradesh.
6. As noted, the entire basis for making the allegations as
contained in the miscellaneous petition is an Article relied
on by the petitioner said to have been published in the
newspaper. There is no other material on record to confirm
the truth or otherwise of the statement made in the
newspaper. In our view this Court will have to be very
circumspect while accepting such contentions based only on
certain newspaper reports. This Court in a series of
decisions has repeatedly held that the newspaper item
without any further proof is of no evidentiary value. The
said principle laid down has thereafter been taken note in
several public interest litigations to reject the allegations
contained in the petition supported by newspaper report. It
would be appropriate to notice the decision in the case of
Kushum Lata vs. Union of India & Ors. (2006) 6 SCC 180
wherein it is observed thus, “…. It is also noticed that the
petitions are based on newspaper reports without any
attempt to verify their authenticity. As observed by this Court
WP (Crl) No.177/2020
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in several cases, newspaper reports do not constitute
evidence. A petition based on unconfirmed news reports,
without verifying their authenticity should not normally be
entertained. As noted above, such petitions do not provide
any basis for verifying the correctness of statements made
and information given in the petition.”
7. This Court in the case of Rohit Pandey vs. Union of
India (2005) 13 SCC 702 while considering the petition
purporting to be in public interest filed by a Member of the
Legal Fraternity had come down heavily on the petitioner
since the said petition was based only on two newspaper
reports without further verification.
8. In the above backdrop, in the instant case it is to be
noticed that the Chairman and a Member of the
Commission had held high Constitutional positions and
while making allegations the petitioner has based his claim
only on the newspaper report and the manner in which the
averments are made in the application is unacceptable.
9. In any case, the allegation that the brother of the
chairman of the Commission is a legislator belonging to or
WP (Crl) No.177/2020
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supporting the party in power and that the member of the
Commission is related to the IG of Police (Kanpur Range) are
not sufficient to come to the conclusion that it would lead to
bias or conflict of interest since there is no indication
whatsoever as to the nature of influence such of those
relatives would be able to exert and as to whether they are
in a dominant position.
10. It must be remembered that we are dealing here with
an Inquiry Commission constituted under the Commissions
of Inquiry Act, whose functions and role are by now well
defined. As held by the Constitution Bench in Ram
Krishna Dalmia vs. Justice S. R. Tendolkar, 1959 SCR
279, a commission constituted under the Commissions of
Inquiry Act, 1952 is empowered merely to investigate, record
its findings and make its recommendations. These
recommendations are not enforceable proprio vigore. The
view taken in Ram Krishna Dalmia, was reinforced by a
larger bench in State of Karnataka vs. Union of India,
(1977) 4 SCC 608. In fact, this Court went in Sham Kant
vs. State of Maharashtra, 1992 Suppl. (2) SCC 521, to the
WP (Crl) No.177/2020
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extent of holding that the findings of the Inquiry
Commission are not binding on the Court, while dealing
with an appeal arising out of conviction and sentence of a
police officer. The police officer who was the appellant before
this Court in the said case sought to rely upon the findings
of the Inquiry Commission that the victim of custodial
violence could have sustained injuries prior to his arrest.
But this Court refused to rely upon the findings of the
Inquiry Commission to overturn the conviction of the police
officer.
11. In K. Vijaya Bhaskar Reddy vs. Government of
Andhra Pradesh, AIR 1996 AP 62, a Division Bench of the
Andhra Pradesh High Court had an occasion to deal with
the challenge to the appointment of a oneman Commission
of Inquiry under the Commissions of Inquiry Act, 1952. One
of the grounds of challenge was bias on the part of the
appointee. After pointing out that bias by interest which
disqualifies a Judge, may fall into two broad classes namely,
(i) bias arising out of pecuniary interest, and (ii) bias arising
out of personal interest in the outcome, on account of the
WP (Crl) No.177/2020
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Judge’s relationship with one of the parties, the Division
Bench of the Andhra Pradesh High Court quoted Massey
from his Treatise on Administrative Law to the following
effect: “personal bias arises from a certain relationship
equation between the deciding authority and the parties
which incline him unfavourably or otherwise on the side of
one of the parties before him”.
12. Though a contention was raised in K. Vijaya Bhaskar
Reddy that the principle has no application to the
proceedings before an Inquiry Commission, which are
basically inquisitorial and not judicial or quasijudicial or
adversarial, the Division Bench of the Andhra Pradesh High
Court held that the duty to act fairly and impartially flowed
out of the principles of natural justice. Therefore, the
Andhra Pradesh High Court upheld the right of the
petitioner therein to raise the plea of bias. However, the
Court held that to sustain a plea of reasonable
apprehension of bias, (i) there must be cogent,
uncontroverted and undisputed material, and (ii) the court
cannot go by vague, whimsical and capricious suspicion.
WP (Crl) No.177/2020
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Applying these principles, the Andhra Pradesh High Court
rejected the challenge made by a former Chief Minister of
the state, to the appointment of a retired Judge as oneman
Commission to inquire into certain alleged irregularities
committed by him while in office.
13. Thus, even in a case where the petitioner before the
Court was a person against whom the Commission of
Inquiry was constituted, the Court applied strict standards,
for testing the allegation of personal bias against the Inquiry
Commission.
14. In the case on hand, the Petitioner is a lawyer by
profession who practices in Mumbai and has come up by
way of Public Interest Litigation. Therefore, the allegations of
bias made by him against the members of the Commission
merely on the basis of newspaper reports and nothing more,
are liable to be rejected outright.
15. The petitioner has relied on the decision of this Court
in the case of Ranjit Thakur vs. Union of India & Ors.
(1987) 4 SCC 611 to contend that this Court held that the
Likelihood of bias in the mind of the party would be
WP (Crl) No.177/2020
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sufficient to complain. The facts in the said case led to such
conclusion inasmuch as the nature of involvement of
respondent No.4 in punishing the appellant in that case and
thereafter participating lead to bias and that position was
accepted. The facts involved herein are entirely different.
The proceedings herein are not an inter se determination of
legal issues between the parties but a factfinding exercise.
The petitioner herein is an advocate who practices law in
Mumbai, Maharashtra and is in no way connected to the
incident in question which took place in U.P. However, the
petition filed by him in public interest was accepted and the
Commission of Inquiry consisting of persons who had held
high position has been constituted. The enquiry held would
be in public domain and the petitioner has already been
granted the liberty of participating therein. The report of
the enquiry is ordered to be filed in the petitions which were
filed before this Court. Therefore, there would be sufficient
safeguard to the manner in which the inquiry would be
held. We find that the petitioner has been raising
unnecessary apprehensions and repeated applications are
being filed which in fact is hampering the process of inquiry.
WP (Crl) No.177/2020
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16. For all the aforestated reasons we are of the opinion
that the instant petition/application is without any merit
and the same is accordingly dismissed.
..…………………………..CJI.
(S. A. Bobde)
…..…………………………..J.
(A. S. Bopanna)
..…..………………………….J
(V. Ramasubramanian)
AUGUST 19, 2020
NEW DELHI
WP (Crl) No.177/2020
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