N.S. Ziyauddin Ahemed and etc. vs Union of India and others

Srinivasan, J.—These two appeals are against the common order passed by a learned single Judge of this Court in W.P. Nos. 17944 and

17987 of 1994, respectively, both of which are public interest litigations. W.P. No. 17944 of 1994 was filed by a practising Advocate for the

issue of a writ of mandamus directing the initiation of criminal contempt of other appropriate proceeding against person responsible for the illegal

arrest and other violations of the rights of the 5th respondent on 28-1-1994 and the consequent attack on the independence of judiciary, directing

the 3rd respondent (State of Tamil Nadu, represented by the Secretary to Government, Home Department) to take disciplinary proceedings

against the Officers involved in the deliberate arrest of AL. Kumar (5th respondent) on 28-1-1994; directing the 1st respondent (Union of India,

represented by the Secretary to the Ministry of Home Affairs, New Delhi) to constitute a special investigation team consisting of responsible

Officers from the specialised agency like C.B.I. with the approval of this Court and directing the said Team to investigate the entire background of

the arrest of the 5th respondent (AL. Kumar) on 28-1-1994 and the subseqeunt closure of the matter by the police in Crimes Nos. 231 and 232

of 1994 on the file of the 4th respondent (Inspector of Police, Prohibition Enforcement Wing, Madhuranthagam).

In the affidavit, it is stated that the petitioner is representing the genuine feelings and concern of a number of members of the Bar and also the

members of the public for getting effective measures to ensure the independence of judiciary. The petitioner and his friends were shocked to read

the news item which appeared in the ""Indian Express"" on 8-10-1994 under the caption ''case against Judge''s son-in-law dropped''. They were

aware of the background of the matter, which led to the arrest of Mr. AL. Kumar, who is the son-in-law of a sitting Judge of this Court. There

were unconfirmed news for quite sometime among Advocates, media persons and a Section of the police force that the case against the 5th

respondent had come to a settlement and that has been well established by the happening regarding the investigation, which resulted in the dramatic

conclusidn of the proceeding before the Special Court, Madras and in the proceeding in W.P. No. 2599 of 1994. According to the petitioner, the

manner in which such a serious matter Was dealt with has sent shock waves among all sections of the public. A team of Advocates had met a

cross section of the people even at the time of the arrest of the 5th respondent and the controvercial poster, which appeared in and around the

High Court premises in Madras and they were told that a firm and strong action is necessary to restore the values of the Rule of law. Even people

felt that the whole background of the arrest of the 5th respondent and the persons who engineered the police operation in a calculated manner,

could be brought to book as the real target was a sitting Judge of the High Court. 5th respondent was arrested on 28-1-1994 at about 5 a.m. and

he was in jail up to 1-2-1994 in connection with a case arising out of the Narcotic Drugs and Psychotropic Substances Act, Prohibition Act and

the Rectified Spirit Rules. According to the petitioner, the 5th respondent filed the writ petition in W.P. No. 2599 of 1994 for the issue of a writ of

certiorarified mandamus to call for the records relating to Crimes Nos. 231 and 232 of 1994 on the file of the 4th respondent and quash the same

in so far as the petitioner therein is concerned and consequently forbear the respondents from taking any further proceedings pursuant thereto

against the petitioner therein. The writ petition was admitted and interim stay"" of further proceedings was ordered on 18-2-1994. The 5th

respondent herein had alleged that the proceedings were initiated against him only because he was the son-in-law of a sitting Judge of this Court

and the action was really directed against the Judge, because he had pronounced some judgment against the State Government and in order to

threaten the Judge, the 5th respondent was arrested. There was a proceeding before a Special Judge constituted under NDPS Act. A report was

filed in that court to the effect that the witnesses preferred not to support the prosecution and there was no adequate evidence to file a charge

sheet. On the basis of the such a report, the said Court dropped the case as against the 5th respondent. On the same basis, the writ petition filed

by the 5th respondent in this Court was disposed of holding that no further orders were necessary as the proceedings had been closed before the

Special Court. That order was passed on 6-10-1994. The affidavit filed in support of the petition refer to certain other proceedings initiated for

contempt in connection with the posters that appeared in the High Court compound walls. That proceeding is still pending in Contempt Application

No. 69 of 1994. On the above submissions, the prayers referred to earlier, are made by the petitioner.

The other writ petition, W. P. No. 17987 of 1994, is filed by National Trust for Human Rights, represented by its Secretary. The facts, as

stated on the affidavit, are almost the same as in the other writ petition. But the prayers is different, via., for the issue of a writ of mandamus for the

prosecution of those alleged by the 5th respondent (Mr. AL. Kumar) to have been involved in the false implication of him in Crimes Nos. 232 and

233 of 1994, as alleged by him in W.P. No. 2599 of 1994 or in the alternative in Crimes Nos. 232 and 233 of 1994 in the event of the

commission of enquiry finding a prima facie case for prosecution of such offence of course, the prayer is not very clear.

Both the writ petitions were heard together and a common order is passed by the learned single Judge. After referring to the prayers, the

learned Judge has observed that these two petitions have been filed after the closing of W.P. No. 2599 of 1994. It was also observed by the

learned Judge that when an attempt was made to attack a learned sitting Judge of this Court and thereby affecting the independence of judiciary,

no writ petition was filed, but the writ petition has been filed after the cases were dropped and further, when an attempt was made to attack on the

independence of a learned sitting Judge of this Court by pasting some posters. Contempt proceedings were initiated in Cont. Appln. No. 69 of

1994 and the same is pending. The learned Judge has further said that the 5th respondent has not made any grievance with regard to his arrest or

the registering of cases against him after the proceedings are droped against him. The learned Judge has also referred to the report submitted by

the police before the Special Court that the cases in Crimes Nos. 231 and 232 of 1994 were droped, as the witnesses did not prefer to support

the. case of the prosecution and as such, charge sheet could not be filed. The learned Judge observed that if the 5th respondent has grievance

either as regards his arrest or as to malicious prosecution or for defamation or for seeking compensation, it is for him to take appropriate action in

accordance with law. It is also observed by the learned Judge that it is open to the petitioner if so advised to initiate appropriate contempt

proceedings and for that purpose, the writ petition cannot be entertained. Learned Judge referred to the decisions cited by the petitioners in

support of their contention and held that none of them helped the case of the petitioners. Consequently, the writ petitions were dismissed.

It is argued by learned counsel for the appellant in W. A. No. 1375 of 1994 that it is a very serious matter that has taken place, in which a

learned Judge of this Court has been threatened and the independence of judiciary has been interfered with. It is argued that the facts of the case

so far mentioned are sufficient for directing an investigation into the entire matter and giving appropriate directions. In support of this contention,

learned counsel placed reliance on the case, in which the Chief Judicial Magistrate of Nadiad was arrested by the police and harassed by them and

ultimately the Supreme Court issued directions to investigate the same and initiate contempt proceedings. Our attention is also drawn to a recent

case, in which some incidents took place inside the premises of Allahabad High Court and the Supreme Court issued directions. Reliance is also

placed on a decision of the Surpeme Court i Punjab and Haryana High Court Bar Association, Chandigarh through its Secretary Vs. State of

Punjab and others, . In that case, the Bar Association of Punjab and Haryana High Court appointed an action Committee and held an enquiry into

the matter of the disappearance of a practising Advocate, his wife and child. The case was that they were abducted and murdered. The enfire

fraternity of lawyers practising in that High Court and the District Courts in the States of Punjab and Haryana as also the Union territory of

Chandigarh, were not satisfied with the police investigation. In those circumstances, an Action Committee was formed and the Committee held

detailed enquiry and that Committee submitted a report. On the basis of the report submitted by the Committee and the statements recorded by

the police, the Supreme Court found that there was enough material for directing an enquiry. The relevant passage in that Judgment is as follows (at

p. 1028):--

We have heard Mr. Rajinder Sachhar, learned counsel for the appellant. We have also heard Mr. G. K. Chatrath, learned Advocate General for

the State of Punjab. It is not necessary for us to go into the question as to whether the writ petition before the High Court was for bringing an end

to the lawyers strike or to appoint an independent enquiry agency to probe into the disappearance and alleged murder of Kulwant Singh,

Advocate and his family. Be that as it may the fact remains that the Five Judge Bench of the High Court was seized of the matter wherein the issues

regarding the abduction and alleged murder of Kulwant Singh. Advocate and his family were raised before it. The report of the ''Action

Committee'' of the Bar Association, statements recorded by the police, including that of Harpreet Singh alias Lucky and other relevant documents

were before the High Court. The High Court was wholly unjustified in closing its eyes and ears to the controversy which had shocked the lawyers

fraternity in the region. For the reasons best known Lo it, the High Court became wholly oblivious to the patent facts on the record and failed to

perform the duty entrusted to it under the Constitution. After giving our thoughtful consideration to the fact and cricumstances of this case, we are

of the view that the least the High Court could have done in this case was to have directed an independent investigation/enquiry into the mysterious

and most tragic abduction and alleged murder of Kulwant Singh, Advocate and his family.

We are conscious that the investigation having been completed by the police and charge sheet submitted to the Court, it is not for this Court,

ordinarily, to reopen the investigation. Nevertheless, in the facts and circumstances of the present case, to do complete justice in the matter and to

instil confidence in the public mind, it is necessary, in our view, to have fresh investigation in this case through a specialised agency like the Central

Bureau of Investigation (C.B.I.)

None of the cases, referred to above, has any relevance in the present case. In this case, what had been done was to arrest a particular person

under the provisions of NDPS Act and Prohibition Act. Prosecution was initiated, but it was later dropped on the report that witnesses were not

forthcoming to support the prosecution. That person happened to be a son-in-law of a Judge of this Court. He filed a writ petition challenging the

proceeding, as soon as he was arrested. He made certain allegations in his affidavit to the effect that his arrest was only in order to threaten, and

take revenge against, his father-in-law, who pronounced some judgment against the State. That cannot be taken as basis for entertaining these writ

petitions and directing enquiry. Those were only allegations made by a party in support of his own writ petition. No investigation was done at any

stage as to the correctness of the truth of the allegations contained in the affidavit of the said person in the said writ petition. Hence, no reliance can

be placed on those allegations.

The averments made in the affidavit filed in support of the present writ petition by the appellant/petitioner do not make out a case for the grant of

any of the reliefs prayed for in the writ petition and the view of the learned single Judge that it is for the aggrieved person, viz., the 5th respondent

to take appropriate proceedings seeking compensation or other appropriate reliefs is correct and there is no justification to interfere with that

conclusion.

In the other writ appeal, W. A. No. 1393 of 1994, it is argued that if the prosecution was really intended to be directed against the learned

Judge of this Court, it would amount to interference with the independence of judicial and it was only with a view to threaten the learned Judge and

in order to secure favourable orders from him by the State Government. It is argued that in that event, it was a case of ''public injury'' and a public

interest litigant is entitled to maintain a cause to remedy such an injury. Reliance is placed on the judgment of a Full Bench of this Court in Civil

Liberties Council Rep. by its convener, R. R. Dalavai, Etc. v. Govt. of Tamil Nadu Etc.. (W.P. Nos. 4002, 4200 and 4201 of 1987judgment

dated 19-9-1994). The Full Bench quoted extensively from the judgment of the Supreme Court in S.P. Gupta Vs. President of India and Others,

and observed :

The passages underlined by us bring out the crux of the matter. It is seen that the Court has taken care to define a private injury and a public

injury. As pointed out in the passage underlined by us, if the public authority or the State exceeds its power and causes a specific legal injury to a

person or a particular class or group of persons, it would be a case of private injury actionable only at the instance of the injured persons. It can

not be treated as a public injury in which relief can be sought by third parties.

It is contended by learned counsel that in the present case, the 5th respondent had in his writ petition, W.P. No. 2599 of 1994 made a specific

allegation that he was arrested only because the State Government wanted to threaten his father-in-law, a sitting Judge of this Court. Learned

counsel for the appellant would submit that it would amount to a public injury and it should be investigated and appropriate remedy granted. If on

the other hand, the allegation is not true, it is only a case of private injury and it should be found out whether the case instituted by the 5th

respondent was true or false. We are unable to agree with the contention of learned counsel for the appellant, as on the facts of this case, it is seen

that witnesses were not forthcoming to support the prosecution against the 5th respondent and no inference can be drawn from that circumstances

alone that the criminal case initiated as against the 5th respondent, was itself mala fide or that it was launched only for the purpose of threatening his

father-in-law. On the basis of the available material on record, there cannot be only dirction in the writ petition at the instance of a public interest

litigant to hold an investigation into the matter as prayed for. This is not a case in which the petitioner or any other body or authority has

investigated the matter and brought the facts before Court to support the prayer in the writ petition. In those circumstances, we hold that the

contents of the affidavit filed in support of the writ petition No. 17987 of 1994 do not make out a case for granting the prayer, as rightly held by

the learned Judge. Consequently, we hold that the learned Judge is right in dismissing the writ petitions and these writ appeals are dismissed in

limine.

Appeals dismissed.