Ghanshyam Upadhyay vs State Of U.P. & Ors.

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 â€"Vikas Dubey and to

safeguard the life of the accused. Before the petition was taken up for consideration certain other developments had occurred, inasmuch as the said

Vikas Dubey was killed by the police in an alleged encounter. Along with the said writ petition, certain other writ petitions which were also filed in

public interest seeking for an appropriate enquiry in that regard were tagged. All the related writ petitions were taken up for consideration together.

The State Government in a reply filed to the said writ petitions, apart from referring to the other aspects of the matter had also indicated that the

Government having taken serious cognizance of all the events, apart from constituting a Special Investigation Team had also constituted a Commission

of Inquiry under the Commission of Inquiries Act, 1951 headed by a former Judge of Allahabad High Court. In that regard it is to be noted that Shri

Justice Shashikant Agrawal, a former Judge had been appointed.

In the course of the proceedings before this Court, based on a suggestion made by this Court, the State Government had undertaken the exercise to

expand the composition of the Commission. Accordingly, in addition to the former High Court Judge who had been appointed the State Government

suggested the name of Dr. Justice B.S. Chauhan, a former Judge of this Court to be the Chairman and Mr. K.L. Gupta, IPS, Former Director General

of Police to be a Member. This Court having considered it appropriate had through the order dated 22.07.2020 accepted the constitution of the

Commission of Inquiry in the said manner and the writ petition was directed to be listed along with the report of the Commission. The petitioners were

also granted the liberty of applying to the Inquiry Commission to be heard in the matter.

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 Wireâ€​ dated 29.07.2020.

We have heard the petitionerÂ​inÂ​person and perused the petition papers.

At the outset it is necessary to notice that the petitioner herein had filed the applications in I.A. No.68207/2020 and I.A. No.67940/2020 after the

constitution of the Inquiry Commission raising certain objections with regard to Shri K.L. Gupta being the Member of the Commission since according

to the petitioner he had made certain comments in favour of the police in the interview given to the media. This Court having considered the same and

on not finding it objectionable, dismissed the application through the order dated 28.07.2020 holding the application to be devoid of merits. Despite the

same, the very same contentions are urged in the instant application as well and has also raised an additional contention that the said Shri K.L. Gupta

is related to Shri Mohit Agarwal, the IG of Kanpur Zone. Further, objection is raised to the continuation of Dr. Justice B.S. Chauhan as the Chairman

of the Commission since the news report relied on by the petitioner states that his brother and relative are legislators from the Bhartiya Janata Party

which runs the Government in Uttar Pradesh.

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 18 0wherein it is observed thus,

“…. It is also noticed that the petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court

in several cases, newspaper 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.â€​

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.

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.

In any case, the allegation that the brother of the chairman of the Commission is a legislator belonging to or supporting the party in power and that

the member of the Commission is related to the IG of Police (Kanpur Range) are not sufficient to come to the conclusion that it would lead to bias or

conflict of interest since there is no indication whatsoever as to the nature of influence such of those relatives would be able to exert and as to

whether they are in a dominant position.

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 27,9 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 60. 8In fact, this Court went in SHAm KAnt vs. StAte of MAhARAShtRA, 1992

Suppl. (2) SCC 521, to the extent of holding that the findings of the Inquiry Commission are not binding on the Court, while dealing with an appeal

arising out of conviction and sentence of a police officer. The police officer who was the appellant before this Court in the said case sought to rely

upon the findings of the Inquiry Commission that the victim of custodial violence could have sustained injuries prior to his arrest. But this Court refused

to rely upon the findings of the Inquiry Commission to overturn the conviction of the police officer.

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 oneÂman Commission of Inquiry under the Commissions of Inquiry Act, 1952. One

of the grounds of challenge was bias on the part of the appointee. After pointing out that bias by interest which disqualifies a Judge, may fall into two

broad classes namely, (i) bias arising out of pecuniary interest, and (ii) bias arising out of personal interest in the outcome, on account of the

Judge’s relationship with one of the parties, the Division Bench of the Andhra Pradesh High Court quoted Massey from his Treatise on

Administrative Law to the following effect: “personal bias arises from a certain relationship equation between the deciding authority and the parties

which incline him unfavourably or otherwise on the side of one of the parties before himâ€​.

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 quasiÂjudicial or adversarial, the Division Bench of the Andhra Pradesh High Court

held that the duty to act fairly and impartially flowed out of the principles of natural justice. Therefore, the Andhra Pradesh High Court upheld the right

of the petitioner therein to raise the plea of bias. However, the Court held that to sustain a plea of reasonable apprehension of bias, (i) there must be

cogent, uncontroverted and undisputed material, and (ii) the court cannot go by vague, whimsical and capricious suspicion. Applying these principles,

the Andhra Pradesh High Court rejected the challenge made by a former Chief Minister of the state, to the appointment of a retired Judge as oneÂ‐

man Commission to inquire into certain alleged irregularities committed by him while in office.

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.

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.

The petitioner has relied on the decision of this Court in the case of RAnjit THAkur vs. Union of IndiA & Ors. (1987) 4 SCC 61 1to contend that

this Court held that the Likelihood of bias in the mind of the party would be sufficient to complain. The facts in the said case led to such conclusion

inasmuch as the nature of involvement of respondent No.4 in punishing the appellant in that case and thereafter participating lead to bias and that

position was accepted. The facts involved herein are entirely different. The proceedings herein are not an inter se determination of legal issues

between the parties but a factÂfinding 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.

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.