S.K. Sundaram vs Secretary, Ministry of Finance

This Writ Petition coming on for orders as to admission on Tuesday 18th day of July 1995 upon perusing the petition and the affidavit filed in

support thereof and upon hearing the arguments of Mr. S. K. Sundaram petitioner appearing in person and having stood over for consideration till

this day the court made the following order :-

The Petitioner, a member of the Bar, has held the writ petition by way of public interest litigation. The petitioner seeks for a direction directing the

respondents 1 to 5 to make a through probe/investigation in respect of the representation of the petitioner dated 13-6-1995, 21-6-1995 and 24-

6-1995 regarding an alleged attempt to export the Indian made Computer Disc by respondents 7 and 8.

The Petitioner placed his reliance in a report made in Tamil weekly Magazine ""Junior Vikadan"" dated 14-6-1995 under the heading

''Pedipattathu Saraku Kadhi Kalangiyathu Customs"". In short the report is to the effect that Indian made computer Disc valued about Rs. 6 lakhs

sought to be exported to a firm in Russia. In the invoice the export value has been mentioned as Rs. 1,50,00,000/-. The Additional Collector

(Customs) on some information had suspicion and opened the container and estimated the value at Rs. 6 lakhs. Whereas in the invoice enhanced

value has been given. He felt that there is something fishy and started to probe the matter further. Thereafter the Additional Collector of Customs

seems to have received instructions from Delhi to drop the further proceedings as the exporter is one Sri Gupta, son-in-law of Birla and the

Advisor for his company is one Mr. Prabhakara Rao, who is the son of the Prime Minister. When the Additional Collector refused to drop the

proceedings, he was transferred.

The Petitioner''s case is that he sent representations to the authorities including respondents 1 to 5 to make a thorough probe into the entire

transactions of exporting computer discs by respondents 6 and 7 through Madras Port. The representations were sent on 13-6-1995, 21-6-1995

and 24-6-1995 and till the date of filing of the writ petition the petitioner did not receive any reply from the respondents. Hence the writ petition

has been filed.

Though the petitioner has stated in the writ petition that the export was made by respondents 7 and 8, in his affidavit in para 14 he has

categorically stated that the export was made by respondents 6 and 7. The sixth respondent is the Additional Collector. Hence the petitioner

himself is not clear as to who tried to export the computer discs.

When the report is dated 14-6-1995 it is not clear how the petitioner had sent his representation on 13-6-1995. In more than one place in his

affidavit he has stated he had sent the representation on 13-6-1995, 21-6-1995 and 24-6-1995. There is no basis for sending the representation

on 13-6-1995.

Further the petitioner has stated that he had sent the representation to the authorities including respondents 1 to 5. In the representation he has

addressed as ''Hon''ble Excellency/Respected Sir''. He has not given any list as to whom he has sent the representation or to whom the copies

have been marked. The petitioner has not produced any acknowledgment to prove that the concerned persons have been served with the

representation. In the absence of any evidence to show that the respondents have been served with the representation of the petitioner, it would be

very difficult to this court to presume that the respondents have been served and they have not taken any steps. Further when the petitioner has

sent the representation as a Pro Bono Publico, it would be very difficult for the authorities to send any reply on his representation.

The Petitioner has nowhere stated in his affidavit that the respondents 1 to 4 are the appropriate authority to take action in this regard and they

have failed to take action. When the petitioner himself has admitted that the report is dated 14-6-1995 on which basis he had made his

representation on 21-6-1995 and 24-6-1995, I am of the view that the period is too short for any Officer to take action and the petitioner cannot

send repeated reminders within three days and four days and expect a reply from the officials; especially in a case like this. The report in the

journal cannot be taken that it contains correct facts because the report itself mentions that it is given on presumption. When the report itself

proceeds that it is on the basis of presumption, the authorities cannot be expected to take any action on the report. If really any incident, as alleged

by the petitioner, has taken place in the Madras Port, then naturally the consignment would have been detained. It is for the authorities to make an

enquiry with the consignor and the consignee and further investigate the matter. So far as the investigation is concerned regarding certain nature of

offences, the investigating authority has to keep the investigation secret because if a number of persons involved and the progress of investigation is

published about the detention of one of the culprits, who would implicate the other culprits, then the other probable culprits would become cautions

and they would evade the apprehension by the officials. So it is not possible in each and every case the investigating authorities can publicise the

investigation and the progress thereon.

It is not the case of the petitioner that no action has been taken with regard to the consignment. What all he requires is a detailed enquiry should be

probed into. Unless the petitioner specifically states that nothing has been moved, it is not open to him to file this sort of writ petition.

The mere grievance of the petitioner seems to be a transfer of the Officer, the sixth respondent herein. Even in all the three representations

referred to by him, he has made reference to the concerned Officer, the Additional Collector Customs and requested that he should be transferred

again to Madras. In this Writ petition also he has filed W.M.P. 14859/95 praying that the respondents 1 to 5 should not transfer the sixth

respondent. Hence if really the sixth respondent is aggrieved against the order of transfer, it is always open to him to challenge such order of

transfer on the ground of mala fides. The petitioner need not be a mouth piece for that Officer.

The public interest litigation now-a-days has taken the role of publicity Many Writ petitions are being filed not really with an intention to get any

relief; but for personal publicity or impliedly for some other individual benefit. The theory of public interest litigation has been developed with a

sense of responsibility. The Supreme Court in the case reported in State of Himachal Pradesh Vs. A Parent of a Student of Medical College, Simla

and Others, has held as follows :-

Public interest litigations is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see

that under the guise of redressing a public grievance it does not encroach upon the sphere reserved by the Constitution to the Executive and the

legislature"".

The Supreme Court has further held as follows:

We may of course make it clear that it is not every letter which may be treated as a writ petition by the Supreme Court or the High Court. It is

only where a letter is addressed by aggrieved person or by a public spirited individual or a social action group for enforcement of the Constitutional

or legal rights....... of a person in custody or of a class or group of persons who by reason of poverty, disability or socially or economically

disadvantaged position find it difficult to approach the Court for redress that the Supreme Court or the High Court would be justified, nay bound,

to treat the letter as a Writ Petition. There may be cases where even a letter addressed for redressal of a wrong done to an individual may be

treated as a writ petition where the Supreme Court or the High Court considers it expedient to do so in the interests of justice. This is an innovative

strategy which has been evolved by the Supreme Court for the purpose of providing easy access to justice to the weaker sections of Indian

humanity and it is a powerful tool in the hands of public-spirited individuals and Social Action groups for combating exploitation and injustice and

securing for the under-privileged segments of society their social and economic entitlements. It is a highly effective weapon in the armoury of the

law for reaching social justice to the common man.

In yet another case reported in Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, where Mr. Justice Khalid (as he

then was) concurring with Mr. Justice Chinnappa Reddy as he then was, has observed as follows :-

My learned brother has considered the facts in detail and the questions of law relevant for the purpose of this appeal. I fully agree with his

conclusions. This short fail piece is with a purpose. This case goes by the name Public Interest Litigation, I wish to delineate the parameters of

Public Interest Litigation concisely, against the background of the facts of this case, so that this salutary type of litigation does not lose its credibility.

Today public-spirited litigants rush to Courts to file cases in profusion under this attractive name. They must inspire confidence in Courts and

among the public. They must be above suspicions. See the facts of this case and the end-result. .... My purpose in adding these few lines of my

own is to highlight the need for restraint on the part of the public interest litigants when they move Courts. Public interest litigation has now come to

stay. But one is led to think that if [poses] threat to Courts and Public alike. Such cases are now filed without any rhyme or reason. If is, therefore,

necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free

flow of such cases in the name of Public Interest Litigations, the traditional litigation will suffer and the courts of law, instead of dispensing justice,

will have to take upon themselves administrative and executive functions ......... It is only when Courts are apprised of gross violation of

fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the

Judicial conscience that the Courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction

under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in

extending help when such help is required. But this does not mean that the doors of this Court are always open for any one to walk in. It is

necessary to have same self imposed restraint on public interest litigants.

In a recent judgment reported in Madras Citizens Progressive Council Vs. Honourable President of India and others, where the Petitioner himself

has appeared as a counsel, this Court has held as follows :-

The petitioner seeks for a specific direction to the first respondent, the President of India, to act in a particular manner in the discharge of his

duties, and in my view, this is what that could not be done at the instance of the petitioner, in the teeth of Article 361 of the Constitution of India.

On the facts and circumstances of the case also, there is no scope or justification for assuming that the first respondent could be attributed with any

lapse in discharging his duties merely on account of the fact that the response from the first respondent is not as expeditious or as expected by the

petitioner, warranting the interference of this Courts.

............ The Petitioner who claims to be an Association of the Madras Citizens cannot claim to specify for or project the alleged grievance of the

people of State of Assam, as if they are either disabled or unable to approach the Court. Thus viewed, the present writ petition appears to be a

mere publicity oriented one rather than aimed at redressal of any genuine public wrong or any public injury.

If the present case is considered on the above said well laid principles, I am of the view that the Writ petition is not maintainable. As already

pointed out earlier, there are some vagueness in the averments made in the petition also.

When it is not the case of the petitioner that no step has been taken, the petitioner ought to have waited till the investigation is completed. By

filing this sort of writ petitions naturally the petitioner is attempting to interfere with the investigation. It is laid down by the Supreme Court in a

judgment reported in State of West Bengal and Others Vs. Sampat Lal and Others, as follows :-

The next aspect to be considered is whether it is open of the Court to interfere with the investigation which is still proceeding. It has been

conceded before us and rightly in our view, that investigation is a matter for the police under the scheme of the Code. Judicial opinion seems to be

settled and we have several authorities of this Court where interference by the Court into Police investigation has not been approved. This question

arose before a Division Bench of three judges in an appeal carried by the same State of West Bengal in the case of State of West Bengal Vs. S.N.

Basak, Kapoor, J quoted with approval the observations of the Judicial Committee in the case of AIR 1945 18 (Privy Council) where the Privy

Council observed:

The functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with a due observance

of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene

in an appropriate case when moved under S. 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case

as the present, however, the Court''s functions begin when a charge is preferred before it, and not until then. It has sometimes been thought that S.

561-A (nor S. 482) has given increased powers to the Court which if did not possess before that section was enacted. But this is not so, the

section gives no new powers, it only provides that those which the court already inherently possesses shall be preserved and is inserted as their

Lordships think, lest it should be considered that the only powers possessed by the Court are these expressly conferred by the Criminal Procedure

Code and that no inherent powers had survived the passing of the Act.

The Court added: ""With this interpretation which has been put on the statutory duties and powers of the Police and of the powers of the Court, we

are in accord. ""On a finding that the High Court had exceeded Jurisdiction in interfering with the investigation, the appeal of the State of West

Bengal was allowed.

The question again arose in the case of S.N. Sharma Vs. Bipen Kumar Tiwari and Others, . On this occasion the Court was called upon to

examine the scope of magisterial power. After referring to the relevant section, the Court concluded that:

The Scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate,

and if is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in

the alternative, himself proceed or depute a Magistrate subordinate of him to proceed of enquire into the case. The power of the Police of

investigate has been made independent of any control by the Magistrate.

Then came the case of State of Bihar and Another Vs. J.A.C. Saldanha and Others, . In a peculiar set of facts this Court was again called upon to

adjudicate upon the scope of Judicial interference over investigation. Speaking on this aspect of the matter, Desai, J spoke for the Division Bench

thus :-

There is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the

field exclusively reserved for the executive through the Police department, the superintendence over which vests in the State Government. The

executive which is charged with a duty to keep vigilance over law and order situation is obliged to Prevent crime and if an offence is alleged to

have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence

having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer

submits report to the Court requesting the Court to take cognizance of the offence under S. 190 of the Code its duty comes to an end. On a

cognizance of the offence being taken by the Court the Police function of investigation comes to an end subject in the provisions as contained in S.

173(8), there commences the adjudicatory function of the Judiciary to determine whether an offence had been committed and if so, whether by the

person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the

offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its

subsequent adjudication between the police and the magistrate.

The observations of the Privy Council which we have already extracted were again quoted with approval, Desai, J adding:

This view of the Judicial Committee clearly demarcates the functions of the executive and the Judiciary in the field of detection of Crime and its

subsequent trial and it would appear that the power of the Police to investigate into a cognizable offence is ordinarily not to be interfered with by

the Judiciary.

If any direction is to be issued by this Court, naturally there is possibility of misconstruction by the concerned authorities. In the absence of any

material to show that the authorities have failed to discharge their statutory duties, I am of the view that no direction can be issued as prayed for by

the petitioner. Hence the Writ Petition is dismissed.