Ram Ashrey vs The State of U.P. and Others

S.S. Chauhan, J.—The present petition u/s 482 Cr.P.C. has been filed, inter alia, on the ground that an application u/s 156(3) Cr.P.C. was moved on 16.5.2005 by opposite party No. 4, on which an order was passed by the Judicial Magistrate for registering the F.I.R. against the petitioners on 2.9.2005. The said order was challenged before the revisional court vide Criminal Revision No. 191 of 2005 and the revisional court passed an interim order on 5.9.2005 staying the operation of the order dated 2.9.2005 and finally the revision was allowed and the order passed by the Magistrate was set aside by means of judgment and order dated 15.2.2007. It is alleged that in the meantime a letter dated 6.5.2005 was written by Sri Anil Sant, the then Secretary, Social Welfare to the Superintendent of Police, Ambedkar Nagar for registering the F.I.R. against the petitioner and others, upon which the Circle Officer, Jalalpur, District Ambedkar Nagar on 21.10.2005 has directed the Station Officer, Malipur to register the case against the petitioner and others. In pursuance to the aforesaid direction an F.I.R. was registered against the petitioner and others on 27.10.2005 and after investigation the police has submitted charge sheet against the petitioners. Hence this petition.

Submission of learned Counsel for the petitioner is that in spite of the interim order passed by the revisional court the F.I.R. was registered against the petitioner on the basis of a letter written by Sri Anil Sant in the capacity of the Secretary, Social Welfare. The said letter has been placed on record as Annexure CA-1 to the counter affidavit filed by Sri Yogendra Kumar Pachauri, D.I.G., Devi Patan Range, who has annexed the aforesaid document to prove that the F.I.R. was registered against the petitioners on 27.10.2005 in pursuance to the letter written by Sri Anil Sant. It is submitted that on the said date i.e. 27.10.2005 the interim order passed by the revisional court dated 5.9.2005 was very much in existence and, therefore, the order of the Court ought to have been complied with and respected in stead of brushing aside it and registering the F.I.R. in pursuance to the letter of the Secretary, Social Welfare dated 6.5.2005 and alternatively even if there was letter of the Secretary, Social Welfare dated 6.5.2005, then he was no authority vested with him to write such a letter and misused the powers vested in him, which were otherwise not available to him and thereby interfering with the process of law and administration of justice without authority. It is further submitted that the Secretary, Social Welfare was not empowered to write such a letter for registration of the F.I.R. as the said power is vested with the Superintendent of Police as contemplated under Rule 12(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for short the ''Rules''). Hence, reliance placed by the Secretary, Social Welfare that he happens to be the Convener of the State-level Vigilance and Monitoring Committee and in that capacity he has written the letter, cannot be accepted as the State-level Vigilance and Monitoring Committee does not vest any such power for writing any such letter. The Secretary, Social Welfare was not vested with any such power and could not have written any such letter by virtue of his occupying the post and moreover it was not written as a Convener of the State-level Vigilance and Monitoring Committee, but it was written in the capacity of Secretary, Social Welfare.

Learned Government Advocate appearing on behalf of Sri Sant has filed an affidavit and in the aforesaid affidavit it has been stated that on the date of writing of the letter, the order of the court was not in existence and, therefore, he cannot be said to have over ridden the order of the revisional court and moreover he has admitted the writing of the letter in para 5 of the counter affidavit. It is also submitted that concerned police authority did not inform the deponent regarding the interim order dated 5.9.2005 and final judgment dated 15.2.2007. It is also submitted that the deponent remained Secretary, Social Welfare till 25.9.2005. The aforesaid letter was written for registering the F.I.R. by Sri Sant in the capacity of Convener of the state-level Vigilance and Monitoring Committee and, therefore, he was vested with such power and hence no fault can be attributed and neither any illegality for stepping over the jurisdiction can be attributed to him.

I have heard learned Counsel for the parties and gone through the record and the affidavit filed by Sri Sant.

The letter written by Sri Sant has not been denied, but in fact in para 5 of the counter affidavit he has stated that he has written the letter dated 6.5.2005 to the Superintendent of Police, Ambedkar Nagar, but at the earliest he has denied the knowledge of the interim order dated 5.9.2005 and the final judgment and order dated 15.2.2007.

The question is not as to whether the interim order and the final judgment of the revisional court were brought to his knowledge or not, but the question which falls for consideration before this Court is as to whether Sri Sant has over stepped the jurisdiction in writing the aforesaid letter and for this purpose provisions of the Act and the Rules sought to be relied upon by Sri Sant have to be taken into consideration.

Under Rule 16 of the Rules the State-level Vigilance and Monitoring committee is constituted and in the said Rule in Clause (v) the Secretary in-charge of the welfare and development of the Scheduled Castes and the Scheduled Tribes has been indicated to be the Convener.

It is alleged by Sri Sant that in the capacity of Convener he has written that letter and, therefore, he cannot be faulted in any manner.

Sub-rule (2) of Rule 16 provides the jurisdiction of the Committee and it lays down as under:

16 (2) The high power vigilance and monitoring committee shall meet at least twice in a calendar year, in the month of January and July to review the implementation of the provisions of the Act, relief and rehabilitation facilities provided to the victims and other matters connected therewith, prosecution of cases under the Act, role of different officers/agencies responsible for implementing the provisions of the Act and various reports received by the State Government.

The relevant Rule for the purposes of appreciation in the present matter is Rule 12, wherein it has been stated that the measures to be taken by the district administration and in Sub-rule (2) of Rule 12 it has been provided that Superintendent of Police shall ensure that the First Information Report is registered in the book of the concerned police station and effective measure for apprehending the accused are taken. But no such powers is vested with the Convener of the State-level Vigilance and Monitoring Committee, but in fact Sub-rule (2) of Rule 16 provides that the high power vigilance and monitoring committee shall meet at least twice in a calendar year, in the month of January and July to review the implementation of the provisions of the Act, relief and rehabilitation facilities provided to the victims and other matters connected therewith, prosecution of cases under the Act, role of different officers/agencies responsible for implementing the provisions of the Act and various reports received by the State Government, but no such power has been conferred upon the Convener of the Committee to write such a letter for registering the F.I.R. Hence, it is clear that Sri Sant without authority of law has proceeded to write a letter for registration of the F.I.R. assuming the jurisdiction in himself, which was not otherwise vested in him under the provisions of the Rules. The district administrative authorities have under pressure from Sri Sant ignored the interim order dated 5.9.2005 and proceeded to register the F.I.R. against the petitioner and others on 27.10.2005. How the system has to work in a democratic country whether the rule of law is supreme and has to prevail irrespective of the high and mighty person, whosoever he may be. The might of Sri Sant has prevailed to such an extent that the interim order of the Court was ignored and the F.I.R. was registered. If such things are permitted to go on and the officers holding high posts continue to write such letters like Sri Sant, then the rule of law will tumble down and the administrative chaos will prevail the areas of work of the administrative authorities and the police authorities. If the power under the Rules is vested with the Superintendent of Police, then it could not be usurped or exercised by Sri Sant in the capacity of Convener of the State-level Vigilance and Monitoring Committee. Such exercise of power on his behalf amounts to transgression of his power and he cannot be permitted to usurp such power, which is not otherwise vested to him under the provisions of the Act and the Rules. Usurping of such power without authority and in the aforesaid garb writing such letters for registration of F.I.R. was certainly a misconduct on behalf of Sri Sant.

While dealing with the question of abuse of power the apex Court in the case of S. Pratap Singh Vs. The State of Punjab, held as under:

...The Constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State, including the Government, acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of power and its Jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual.

In the case of Express Newspapers Pvt. Ltd. and Others Vs. Union of India (UOI) and Others, the apex Court held as under:

Professor de Smith in his monumental work the Judicial Review of Administrative Action, 4th edition at pp.335-36 says in his own terse language:

The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred.... A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise.

He then goes on to observe:

If the Court concludes that the discretionary power has been used for an unauthorized purpose it is generally immaterial whether its repository was acting in good or bad faith. But there will undoubtedly remain areas of administration where the subject matter of the power and the evident width of the discretion reposed in the decisionmaker render its exercise almost wholly beyond the reach of judicial review. In these cases the courts have still asserted jurisdiction to determine whether the authority has endeavoured to act in good faith in accordance with the prescribed purposes. In most instances the reservation for the case of bad faith is hardly more than a formality. But when it can be established, the courts will be prepared to set aside a judgment or order procured or made fraudulently despite the existence of a generally worded formula purporting to exclude judicial review.

Bad faith is here understood by the learned author to mean intentional usurpation of power motivated by considerations that are incompatible with the discharge of public responsibility. In requiring statutory powers to be exercised reasonably, in good faith, and on correct grounds, the Courts are still working within the bounds of the familiar principle of ultra vires. The Court assumes that Parliament cannot have intended to authorize unreasonable action which is therefore ultra vires and void. This is the express basis of the reasoning in many well-known cases, on the subject. A necessary corollary is that, as usual throughout administrative law, we are concerned only with acts of legal power i.e. acts which, if valid, themselves produce legal consequence.

Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a S. Pratap Singh Vs. The State of Punjab, A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an ''alien'' purpose other than the one for which the power is conferred in mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown 1904 AC 515, ''that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred''. It was said that Warrington, C.J., in Short v. Poole Corporation (1926) 1 Ch 66 that:

No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative.

In Lazarus Estates Ltd. v. Beasley (1956) 2 QB 702 at Pp.712-13 Lord Denning, LJ. said:

No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.

See also, in Lazarus case at p.722 per Lord Parker, CJ:

''Fraud'' vitiates all transactions known to the law of however high a degree of solemnity.

All these three English decisions have been cited with approval by this Court in Partap Singh''s case.

In Dr. Ram Manohar Lohia Vs. State of Bihar and Others, it was laid down that the Courts had always acted to restrain a misuse of statutory power and more readily when improper motives underlie it. Exercise of power for collateral purpose has similarly been held to be a sufficient reason to strike down the action. In State of Punjab Vs. Ramjilal and Others, it was held that it was not necessary that any named officer was responsible for the act where the validity of action taken by a Government was challenged as mala fide as it may not be known to a private person as to what matters were considered and placed before the final authority and who had acted on behalf of the Government in passing the order. This does not mean that vague allegations of mala fide are enough to dislodge the burden resting on the person who makes the same though what is required in this connection is not a proof to the hilt, as held in Barium Chemicals Ltd. v. Company Law Board (1966) Supp. S.C.R.311, the abuse of authority must appear to be reasonably probable.

The Court in Pratap Singh''s case AIR 1964 SC 733 observed that the Constitution enshrines and guarantees the rule of law and the power of the High Courts under Article 226 (which is equally true of Article 32) is designed to ensure that each and every authority in the State, including the Government, acts bona fide and within the limits of its powers and that when a court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual. The Court further observed that in such an event the fact that the authority concerned denies the charge of mala fide, or asserts the absence of oblique motives, or of its having taken into consideration improper or irrelevant matter, does not preclude the Court from inquiring into the truth of the allegations made against the authority and affording appropriate relief to the party aggrieved by such illegality or abuse of power in the event of the allegations being made out.

The tests, which have been laid down by the apex Court in the case of The State of Uttar Pradesh Vs. Mohammad Naim, also are relevant in the present context of the proceedings so as to justify the recording of adverse remark against the officer, who has over stepped his jurisdiction and authority while writing such letter and it cannot be presumed that he was a layman or less educated, but in fact in support of his claim he has stood up to rely upon the Rules, which have been quoted in the counter affidavit to justify the writing of the letter. The three tests, which were laid down in the case of Mohd. Naim (supra) were quoted with approval in Dr. Dilip Kumar Deka and Another Vs. State of Assam and Another, to the following effect:

The tests to be applied while dealing with the question of expunction of disparaging remarks against a person or authorities whose conduct comes in for consideration before a Court of law in cases to be decided by it were succinctly laid down by this Court in The State of Uttar Pradesh Vs. Mohammad Naim, Those tests are:

(a) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself;

(b) Whether there is evidence on record bearing on that conduct justifying the remarks; and

(c) Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.

The above tests have been quoted with approval and applied by this Court in its subsequent judgments in Jage Ram, Inspector of Police and Another Vs. Hans Raj Midha, R.K. Lakshmanan Vs. A.K. Srinivasan and Another, and Niranjan Patnaik Vs. Sashibhusan Kar and Another,

If the conduct of the officer is taken into consideration, then it is apparent that he wrote the letter unmindfully, which reflects on his conduct although he was having no power under the Rules and the Act to write such a letter. The out come of such letter is that persons, who are otherwise not found to be involved in the crime are roped in the crime by the subordinate police officers when such letters are received by them unmindfully although evidence available with the authorities may warrant the innocence of such persons. The said letter has been written ignoring the consideration that the said letter will play havoc with the character and liberty of a person, who is otherwise not involved in the crime. The effect of the letter of the officer concerned was so enormous that the administrative machinery prevailed over the judicial order of the Court and the Circle Officer making reference of the letter of the officer concerned, proceeded to register the F.I.R. in spite of the fact that the order has been stayed by the revisional court on 5.9.2005. The conduct of the officer, therefore, cannot be condoned in such circumstances and usurping a jurisdiction, which is not otherwise vested in a higher officer is of serous consequence and while sitting in the Government when such letters are written, then they play havoc in the subordinate administration. The same thing has happened here. The conduct of such officer should be taken into consideration by the Court as reckless, unmindful and being without jurisdiction and also with a view to harass the innocent citizens/petitioners under his authority of high rank. The higher officer the more responsibility lies on the shoulder of the said officer and he should not act casually, but with a sense of deep responsibility.

In the present case, the officer concerned has acted recklessly and unmindfully by writing such letter, which has resulted in lodging of the F.I.R. and de hors the judicial order dated 5.9.2005. Therefore, in the circumstances of the case and with a view to curb such incidents, so that such letters may not be written in future and also that people may be certain in their mind as to what is the proper forum to approach and in order to reduce the administrative chaos, it is necessary that a censure entry be recorded in the character roll of the officer for writing such letter without authority of law. The Court, therefore, directs the Chief Secretary to record a censure entry in the character roll of the officer.

Let a copy of this order be forwarded to the Chief Secretary by the Registrar for necessary action.

List this petition on 2.4.2010, on which date learned A.G.A. will inform the Court about the action taken by the Chief Secretary.

Interim order shall continue till the next date of listing.