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(2013) 2 Supreme Court Cases 398 : (2013) 2 Supreme Court Cases (Cri) 655 :
2012 SCC OnLine SC 884

In the Supreme Court of India

(BEFORE B.S. CHAUHAN AND SWATANTER KUMAR, JJ.)

KISHORE SAMRITE . . Appellant;

Versus
STATE OF UTTAR PRADESH AND OTHERS . . Respondents.
Criminal Appeal No. 1406 of 2012† , decided on October 18, 2012
A. Constitution of India — Arts. 226, 136 and 32 — Habeas corpus petitions — Abuse of
process of court aimed at political mud-slinging and damaging reputation of public figure —
Petitions dismissed and exemplary costs imposed
— Appellant, ex-MLA, acting as next friend filing writ for habeas corpus for production of
alleged detenus (a girl and her parents) alleging that R-6 leading figure of a national political
party and an MP, was keeping them in illegal private detention incapacitating them from filing a
writ petition — Allegations made by appellant based on news on websites, of rape and illegal
detention of said girl by R-6 and his friends while on a tour of R-6's parliamentary constituency
in Amethi, in 2006 and also that said three persons (three petitioners) were not seen in public
for a long time — Another writ for habeas corpus filed by R-8 herein, also acting as next friend,
alleging detention of said three persons by police authorities, challenging bona fides of
appellant's writ petition — Division Bench imposing costs of Rs 50 lakhs on appellant for filing
frivolous petition and also directing CBI to register cases against appellant and websites which
were relied upon
— Held, website information in present case was nothing but secondary evidence and there is
not even an iota of evidence placed on record which shows remote possibility of happening of
alleged rape incident — Affidavit of police and report by CBI show that alleged incident never
occurred and three petitioners allegedly detained by R-6 have specifically denied any such
incident or making of any report in regard to their alleged illegal detention — Allegations against
R-6 are completely without substance — Three petitioners had made no complaint to any
person, thus, question of their illegal detention and consequential release does not arise — Both
petitions are based on falsehoods — Reputation of R-6 has been damaged and his public image
diminished due to acts of appellant and R-8 — Exemplary costs of Rs 5 lakhs imposed upon
appellant, payable to R-6 — R-8, also approached court with unclean hands, without disclosing
complete facts and misused the judicial process — Petition of R-8 also dismissed with exemplary
costs of Rs 5 lakhs payable to three petitioners — CBI shall continue investigation in furtherance
of direction of High Court against appellant herein — Further directions issued — Evidence Act,
1872 — S. 65 — Secondary evidence — Information on websites
(Paras 56 to 61 and 41 to 46)

Page: 399

B. Constitution of India — Art. 226 — Dismissal of habeas corpus writ petition with costs —
Reward to Director General of Police (DGP) of State concerned of Rs 5 lakhs, for producing
allegedly detained persons in court — Unwarrantedness of — Held, there was no warrant for any
such reward as police and DGP were only performing their duties by producing allegedly
detained persons in court
(Para 60)
C. Constitution of India — Art. 21 — Right to enjoyment of a good reputation — “Reputation”,
reiterated, is protected equally with the right to enjoyment of life, liberty and property —
Rationale for — Terms “person”, “character” and “reputation” — Meanings of — Tort Law —
Defamation — Penal Code, 1860, S. 499
(Paras 58 and 59)
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D. Constitution of India — Art. 226 — Costs — Abuse of process of court — Habeas corpus
petition — Based upon falsehoods and political vendetta — Imposition of heavy exemplary costs
of Rs 50 lakhs, by High Court, held, not called for as Court was not dealing with a suit for
damages but with a petition for habeas corpus, even if petition was not bona fide — Costs
reduced to Rs 5 lakhs
(Para 61)
Disposing of the appeal in the terms below, the Supreme Court
Held :
The term “person” includes not only the physical body and members but also every bodily sense and
personal attribute among which is the reputation a man has acquired. “Reputation” can also be defined to
be good name, the credit, honour or character which is derived from a favourable public opinion or
esteem, and character by report. The right to enjoyment of a good reputation is a valuable privilege of
ancient origin and necessary to human society. “Reputation” is an element of personal security and is
protected by the Constitution equally with the right to enjoyment of life, liberty and property. Although
“character” and “reputation” are often used synonymously, but these terms are distinguishable.
“Character” is what a man is and “reputation” is what he is supposed to be in what people say he is.
“Character” depends on attributes possessed and “reputation” on attributes which others believe one to
possess. The former signifies reality and the latter merely what is accepted to be reality at present. The
methodology adopted by the next friends in the writ petitions before the High Court was opposed to
political values and administration of justice. When there is material to show that a petition styled as a
public interest litigation is nothing but a camouflage to foster personal disputes, the said petition should be
dismissed by the Court. If such petitions are not properly regulated and abuse averted, it becomes a tool
in unscrupulous hands to release vendetta and wreak vengeance as well. In the light of these legal
principles, the appellant and, in fact, to a great extent even Respondent 8 have made an attempt to hurt
the reputation and image of Respondent 6 by stating incorrect facts, that too, by abusing the process of
court.
(Paras 58 and 59)
Kiran Bedi v. Committee of Inquiry, (1989) 1 SCC 494; Nilgiris Bar Assn. v. T.K. Mahalingam, (1998) 1
SCC 550 : 1998 SCC (Cri) 450; Kushum Lata v. Union of India, (2006) 6 SCC 180; Samant N.
Balkrishna v. George Fernandez, (1969) 3 SCC 238; Gosu Jayarami Reddy v. State of A.P., (2011) 11
SCC 766 : (2011) 3 SCC (Cri) 630, relied on
Sukanya Devi v. State of U.P., (2011) 103 AIC 273 : (2011) 73 ACC 544, modified

Page: 400

Ram Prakash Shukla v. Union of India, WP No. 3719 of 2009 (MB 3719/2009), order dated 17-4-2009
(All); Sukanya Devi v. State of U.P., WP No. 125 of 2011, order dated 4-3-2011 (All); Kishore Samrite
v. State of U.P., SLP (Cri) No. 2817 of 2011, order dated 6-4-2011 (SC); Sukanya Devi v. State of
U.P., WP No. 111 of 2011 (Habeas Corpus 111/2011), order dated 1-3-2011 (All), referred to
E. Constitution of India — Art. 226 — Violation of principles of natural justice by High Court —
Opportunity of proper hearing whether afforded to writ petitioner in High Court neither
specifically recorded nor implicitly clear from High Court's order — In appeal before Supreme
Court, parties issued notices and heard at great length, hence, not necessary to examine issue
any further
(Paras 21 and 22)
Sukanya Devi v. State of U.P., (2011) 103 AIC 273 : (2011) 73 ACC 544; Sukanya Devi v. State of
U.P., WP No. 125 of 2011, order dated 4-3-2011 (All), referred to
F. Courts, Tribunals and Judiciary — Judicial Process — Judicial discipline and comity —
Hierarchical discipline — Violation of — Effect of — Held, every court is obliged to adhere to rule
of law with due regard to prescribed procedures and judicial discipline — However, violation
thereof may not always result in invalidation of the judicial action but normally casts a shadow
of improper exercise of judicial discretion on judicial action in question — A greater obligation is
cast upon courts to adhere to judicial discipline while exercising powers under an extraordinary
jurisdiction, like writ jurisdiction — Constitution of India, Arts. 226, 32 and 136 — Rule of Law
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G. Courts, Tribunals and Judiciary — High Courts — Constitution of Benches and making of
Roster — Power in respect of — Chief Justice as Master of the Roster — Division Bench suo motu
transferring writ petition for habeas corpus against private custody pending before a Single
Judge to its own board without leave of Chief Justice of that Court — Impropriety of — Held,
roster and placing of cases before different Benches of High Court is unquestionably the
prerogative of Chief Justice of that Court — It was not a proper exercise of jurisdiction by said
Division Bench as such an action ex facie amounts to dealing with matters relating to
constitution and roster of Benches — An administrative lapse, however, does not normally
render court of competent jurisdiction as lacking inherent jurisdiction nor its orders invalid ab
initio or vitiated in law, particularly when the parties participate in the proceedings without any
objection and protest — It will always depend on the facts and circumstances of a given case —
In the present case, transfer of writ petition was an order lacking administrative judicial
propriety — Allahabad High Court Rules, 1952, Ch. XXI, R. 1 and proviso thereto — Estoppel,
Acquiescence and Waiver — Acquiescence to jurisdiction of court/forum not inherently lacking
jurisdiction
H. Courts, Tribunals and Judiciary — High Courts — Allocation of Work, Roster and Benches —
Nature of — Held, are administrative functions — Hence improper exercise of power in respect
thereof or improper interference therewith, does not automatically render Judge/Bench which
becomes seized of matter, as lacking inherent jurisdiction on the judicial side or render its
orders void ab initio — Effect of said impropriety has to be determined in facts and
circumstances of each case

Page: 401

I. Constitution of India — Arts. 226 and 32 — Habeas corpus — Writ for — Allocation of
Bench/Judge for in Allahabad High Court — Working of R. 1 and proviso thereto of Ch. XXI of
Allahabad High Court Rules, 1952 explained
Held :
Judicial discipline and propriety are the two significant facets of administration of justice. Every court is
obliged to adhere to these principles to ensure hierarchical discipline on the one hand and proper
dispensation of justice on the other. Settled canons of law prescribe adherence to the rule of law with due
regard to the prescribed procedures. Violation thereof may not always result in invalidation of the judicial
action but normally it may cast a shadow of improper exercise of judicial discretion. Where extraordinary
jurisdiction, like the writ jurisdiction, is very vast in its scope and magnitude, there it imposes a greater
obligation upon the courts to observe due caution while exercising such powers. This is to ensure that the
principles of natural justice are not violated and there is no occasion of impertinent exercise of judicial
discretion.
(Para 29)
State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1; State of U.P. v. Neeraj Choubey, (2010) 10 SCC
320 : (2010) 3 SCC (Cri) 1281 : (2010) 2 SCC (L&S) 800, relied on
A petition for habeas corpus was filed by the present appellant and the same was treated as a habeas
corpus petition against private custody and was therefore listed before a Single Judge of the High Court.
Rule 1 of Chapter XXI of the Allahabad High Court Rules provides that a writ petition for habeas corpus
against private custody has to be placed before a Single Judge while in the case of custody other than
private custody, the matter has to be placed before a Division Bench. It appears that on the strength of
this Rule, the writ petition was listed before a Single Judge of the High Court. The roster and placing of
cases before different Benches of the High Court is unquestionably the prerogative of the Chief Justice of
that Court. In the High Courts, which have Principal and other Benches, there is a practice and as per
rules, if framed, that the seniormost Judge at the Benches, other than the Principal Bench, is normally
permitted to exercise powers of the Chief Justice, as may be delegated to the seniormost Judge. In the
absence of the Chief Justice, the seniormost Judge would pass directions in regard to the roster of the
Judges and listing of cases. Primarily, it is the exclusive prerogative of the Chief Justice and does not
admit any ambiguity or doubt in this regard.
(Paras 23 to 25)
In the present case there is no dispute that no order was passed by the Chief Justice of the High Court
or even the seniormost Judge administratively incharge of the Lucknow Bench of the Allahabad High
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Court, transferring the writ petition for hearing from a Single Judge before whom it was pending, to the
Division Bench of that Court. It does not appear to be a proper exercise of jurisdiction by the Division
Bench to suo motu direct transfer of a writ petition without leave of the Chief Justice of that Court as
such action would ex facie amount to dealing with matters relating to constitution and roster of the
Benches. Transfer of a petition may not necessarily result in lack of inherent jurisdiction. It may be an
administrative lapse but normally would not render the Division Bench or court of competent jurisdiction
as lacking inherent jurisdiction and its orders invalid ab initio. Such an order may not necessarily be
vitiated in law, particularly when the parties participate in the proceedings without any objection and
protest. This, however, always will depend on the facts and circumstances of a given case. In

Page: 402

the present case, such transfer by the Division Bench concerned of the High Court to its own board was
an order lacking administrative judicial propriety and from the record it also appears that adequate hearing
had not been provided to the writ petitioners before dismissal of the writ petition by the said Division
Bench.

(Para 30)
J. Practice and Procedure — Abuse of process of court/law/fraud on Court — Principles
governing obligation of litigants while approaching courts and consequences for abuse of
process, enumerated — Constitution of India, Arts. 226, 136 and 32
Held :
The cases of abuse of process of court and such allied matters have been arising before the courts
consistently. The principles that would govern the obligations of a litigant while approaching the court for
redressal of any grievance and the consequences of abuse of process of court have often been stated. It
is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a
variety of cases. These are:
1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead
the courts, initiated proceedings without full disclosure of facts and came to the courts with “unclean
hands”. Courts have held that such litigants are neither entitled to be heard on the merits of the case
nor are entitled to any relief.
2. The people, who approach the court for relief on an ex parte statement, are under a contract
with the court that they would state the whole case fully and fairly to the court and where the litigant
has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
3. The obligation to approach the court with clean hands is an absolute obligation.
4. Quests for personal gains have become so intense that those involved in litigation do not
hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings.
Materialism, opportunism and malicious intent have overshadowed the old ethos of litigative values for
small gains.
5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of
justice with tainted hands is not entitled to any relief, interim or final.
6. The court must ensure that its process is not abused and in order to prevent abuse of process
of court, it would be justified even in insisting on furnishing of security and in cases of serious abuse,
the court would be duty-bound to impose heavy costs.
7. Wherever a public interest is invoked, the court must examine the petition carefully to ensure
that there is genuine public interest involved. The stream of justice should not be allowed to be
polluted by unscrupulous litigants.
8. The court, especially the Supreme Court, has to maintain the strictest vigilance over the abuse
of process of court and ordinarily meddlesome bystanders should not be granted “visa”. Many societal
pollutants create new problems of unredressed grievances and the court should endure to take cases
where the justice of the lis well justifies it.
(Para 32)

Page: 403
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Dalip Singh v. State of U.P., (2010) 2 SCC 114 : (2010) 1 SCC (Civ) 324; Amar Singh v. Union of India,
(2011) 7 SCC 69 : (2011) 3 SCC (Civ) 560; State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3
SCC 402 : (2010) 2 SCC (Cri) 81 : (2010) 1 SCC (L&S) 807, followed
K. Constitution of India — Arts. 141, 21, 226, 32 and 136 — “Access jurisprudence” requiring
courts to deal with legitimate litigation but declining to interfere where such litigation is an abuse
of process of court — Court's approach as active seekers of truth — Party not approaching the
court with clean hands — Non-suiting of, imposition of punitive costs, and action for contempt of
court — Litigant bound to make full and true disclosure of facts — Person seeking equity must
do equity — Maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri
locupletiorem — Easy access to justice not to be used as a licence to file misconceived and
frivolous petitions — Practice and Procedure — Abuse of process of court/law/fraud on Court —
Deterrence of — Equity
(Paras 33 to 40)
P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141 : 1980 SCC (Cri) 649; Tilokchand Motichand
v. H.B. Munshi, (1969) 1 SCC 110; A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya
Nandhavana Paripalanai Sangam, (2012) 6 SCC 430 : (2012) 3 SCC (Civ) 735; Chandra Shashi v. Anil
Kumar Verma, (1995) 1 SCC 421 : 1995 SCC (Cri) 239; Abhyudya Sanstha v. Union of India, (2011)
6 SCC 145 : (2011) 3 SCC (Civ) 241; State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639 :
(2011) 3 SCC (Civ) 875; Kalyaneshwari v. Union of India, (2011) 3 SCC 287 : (2011) 1 SCC (L&S)
498; K.D. Sharma v. SAIL, (2008) 12 SCC 481; Buddhi Kota Subbarao v. K. Parasaran, (1996) 5 SCC
530 : 1996 SCC (Cri) 1038, relied on
L. Constitution of India — Arts. 226 and 32 — Maintainability of writ petition —
Standing/Locus standi — “Next friend” — Who is — Person having some direct or indirect
interest in outcome of petition or on behalf of some person under a disability and/or unable to
have access to justice system for patent reasons — A stranger/unknown to the affected parties
and who has no interest in outcome of litigation, held, has no locus standi to file such petition —
A public-spirited person bona fide bringing petition in relation to violation of fundamental rights,
particularly in habeas corpus petitions, should have some demonstrable interest or relationship
with the affected persons, personally or for benefit of the public at large — Petitioner must
exhibit bona fides, by truthful and cautious exercise of such right — Civil Procedure Code, 1908,
Or. 1 R. 8
M. Constitution of India — Art. 226 — Maintainability — Habeas corpus petition —
Standing/Locus standi — “Next friend” — Who is — A question of both fact and law — Writ
petition filed by third party as “next friend” on ground that persons aggrieved were allegedly
under illegal detention — Alleged detenus/petitioners not making any complaint to any person
nor authorising, requesting nor approaching self-labelled “next friend” petitioners herein to
move court, nor were they under illegal detention, hence question of their release not arising —
Held, self-professed “next friend” petitioners had no locus standi — They are total strangers to
abovesaid genuine petitioners — It is not a case of a third person moving court on behalf of
persons under detention but a case of definite abuse of process of court, and is a motivated
attempt based on falsehood to misguide court and primarily for publicity or political vendetta

Page: 404

Held:
Both the appellant and Respondent 8 had filed their respective writ petitions before the High Court as
next friends of the three petitioners. There has been complete contradiction in the allegations made in the
two writ petitions by the respective petitioners. According to the appellant, the three stated petitioners
were illegally detained by Respondent 6 while according to Respondent 8 they were detained by the
authorities. These contradictory and untrue allegations are the very foundation of these writ petitions. It
may also be noticed that in both the writ petitions, baseless allegations in regard to the alleged incident of
3-12-2006, involving Respondent 6, had also been raised.
(Para 47)
The question of locus standi would normally be a question of fact and law both. The issue can be
decided with reference to the given facts and not in isolation.
(Para 47)
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Ordinarily, the party aggrieved by any order has the right to seek relief by questioning the legality,
validity or correctness of that order. A person who brings a petition even for invocation of a fundamental
right must be a person having some direct or indirect interest in the outcome of the petition on his behalf
or on behalf of some person under a disability and/or unable to have access to the justice system for
patent reasons. Still, such a person must act bona fide and without abusing the process of law. Where a
person is a stranger/unknown to the parties and has no interest in the outcome of the litigation, he can
hardly claim locus standi to file such petition. There could be cases where a public-spirited person bona
fide brings petition in relation to violation of fundamental rights, particularly in habeas corpus petitions, but
even in such cases, the person should have some demonstrable interest or relationship to the involved
persons, personally or for the benefit of the public at large, in a PIL. But in all such cases, it is essential
that the petitioner must exhibit bona fides, by truthful and cautious exercise of such right. The courts
would be expected to examine such requirement at the threshold of the litigation in order to prevent
abuse of the process of court. In the present case, both the appellant and Respondent 8 are total
strangers to the three mentioned petitioners. They have made false averments in the petition and have
withheld true facts from the Court.
(Para 52)
It is not a case of a third person moving the court on behalf of persons under alleged detention. It is a
case of definite abuse of process of court and is a motivated attempt based on falsehood to misguide the
Court and primarily for publicity or political vendetta. More so, when the three genuine petitioners in the
writ petitions have categorically stated that they made no complaint of the alleged incident of 3-12-2006
and never authorised, requested or approached either of the “next friend” petitioners to move the court
for redressal of any grievance. The question of filing habeas corpus petitions on their behalf would not
arise because they were living at their own house and enjoying all freedoms. According to them, they
were detained by none at any point of time either by Respondent 6 or the police authorities. In face of
this definite stand taken by these persons, the question of locus standi has to be answered against both
the appellant and Respondent 8.
(Para 53)
Simranjit Singh Mann v. Union of India, (1992) 4 SCC 653 : 1993 SCC (Cri) 22; S.P. Gupta v. Union of
India, 1981 Supp SCC 87; Karamjeet Singh v. Union of India, (1992) 4 SCC 666 : 1993 SCC (Cri) 17;
Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 : 1993 SCC (Cri) 36; R&M Trust v. Koramangala
Residents Vigilance Group, (2005) 3 SCC 91; Dattaraj Nathuji Thaware v. State of Maharashtra,
(2005) 1 SCC 590; Charanjit Lal

Page: 405

Chowdhury v. Union of India, AIR 1951 SC 41; Jasbhai Motibhai Desai v. Roshan Kumar, (1976) 1 SCC
671, relied on

N. Constitution of India — Art. 226 — Habeas corpus petition — Res judicata — Applicability —
Fresh habeas corpus petition after dismissal of earlier petition by High Court — Similar petition
seeking same relief under Art. 226 having attained finality — Every day of detention under
habeas corpus whether constitutes a fresh and a continuing cause of action — Question not
considered by Supreme Court in present case in view of findings in the case
Held :
It is not necessary to decide this question as a question of law in the facts and circumstances of the
present case particularly in view of the findings recorded on other issues. Suffice it to note that the
judgment of the High Court in the writ petition of 2009 had attained finality as the legality or correctness
thereof was not challenged by any person. There can hardly be any doubt that upon pronouncement of
this judgment this case squarely fell in the public domain and was obviously known to both the petitioners
but they did not even consider it necessary to mention the same in their respective writ petitions.
(Para 54)
Ghulam Sarwar v. Union of India, AIR 1967 SC 1335 : 1967 Cri LJ 1204; Kirit Kumar Chaman Lal
Kundaliya v. Union of India, (1981) 2 SCC 436 : 1981 SCC (Cri) 471, referred to
O. Constitution of India — Arts. 226, 32 and 136 — Habeas corpus — Maintainability —
Petition of habeas corpus lies not only against illegal detention by the executive authority but
also against private individuals
(Para 55)
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in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Sham Lal, In re, (1978) 2 SCC 479 : 1978 SCC (Cri) 291, referred to
B-D/51090/CR
Advocates who appeared in this case:
Harin P. Raval, Additional Solicitor General, Gaurav Bhatia, Additional Advocate General,
P.P. Rao, Rakesh Diwedi, S.P. Singh and K.T.S. Tulsi, Senior Advocates (Ms Kamini Jaiswal,
Asbhimanue Shrestha, S.M. Royekwar, R.K. Shukla, Ajay Singh, Kr. Prashant, Ms
Mahalakshmi Pavani, G. Balaji, Rajiv Nanda, P.K. Dey, B.V. Balaram Das, Arvind Kr.
Sharma, Mohd. Fuzail Khan, Gaurav Dhingra, V.K. Biju, Ms Sadhana Sandhu, Ms Sunita
Sharma, Ms Anil Katiyar, Subramonium Prasad, Raj Kamal and Kuber Boddh, Advocates)
for the appearing parties.

Chronological list of cases cited on page(s)

1. (2012) 6 SCC 430 : (2012) 3 SCC (Civ) 735, A. Shanmugam v.

Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana
Paripalanai Sangam 423d-e

2. (2011) 11 SCC 766 : (2011) 3 SCC (Cri) 630, Gosu Jayarami

Reddy v. State of A.P. 432c-d

3. (2011) 7 SCC 639 : (2011) 3 SCC (Civ) 875, State of M.P. v.

Narmada Bachao Andolan 423

4. (2011) 7 SCC 69 : (2011) 3 SCC (Civ) 560, Amar Singh v. Union of

India 422a-b

5. (2011) 6 SCC 145 : (2011) 3 SCC (Civ) 241, Abhyudya Sanstha v.

Union of India 423

Page: 406

6. (2011) 3 SCC 287 : (2011) 1 SCC (L&S) 498, Kalyaneshwari v.

Union of India 423

7. (2011) 103 AIC 273 : (2011) 73 ACC 544, Sukanya Devi v. State
407a, 408b-c, 409d, 415e-f, 416
of U.P. -e, 416e-f, 417

8. SLP (Cri) No. 2817 of 2011, order dated 6-4-2011 (SC), Kishore
Samrite v. State of U.P. 410

9. WP No. 125 of 2011, order dated 4-3-2011 (All), Sukanya Devi v. 409d, 414c-d, 414e-f, 416e-f
State of U.P. 417
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in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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10. WP No. 111 of 2011 (Habeas Corpus 111/2011), order dated 1-3-
2011 (All), Sukanya Devi v. State of U.P. 413d-e

11. (2010) 10 SCC 320 : (2010) 3 SCC (Cri) 1281 : (2010) 2 SCC
(L&S) 800, State of U.P. v. Neeraj Choubey 419e-f

12. (2010) 3 SCC 402 : (2010) 2 SCC (Cri) 81 : (2010) 1 SCC (L&S)
807, State of Uttaranchal v. Balwant Singh Chaufal 422a-b

13. (2010) 2 SCC 114 : (2010) 1 SCC (Civ) 324, Dalip Singh v. State
of U.P. 422a-b

14. WP No. 3719 of 2009 (MB 3719/2009), order dated 17-4-2009

(All), Ram Prakash Shukla v. Union of India 409c, 412e, 413a, 424d, 431

15. (2008) 12 SCC 481, K.D. Sharma v. SAIL 424a-b

16. (2006) 6 SCC 180, Kushum Lata v. Union of India 433

17. (2005) 3 SCC 91, R&M Trust v. Koramangala Residents

Vigilance Group 429

18. (2005) 1 SCC 590, Dattaraj Nathuji Thaware v. State of

Maharashtra 429d-e

19. (1998) 1 SCC 550 : 1998 SCC (Cri) 450, Nilgiris Bar Assn. v.
T.K. Mahalingam 433a-b

20. (1998) 1 SCC 1, State of Rajasthan v. Prakash Chand 418b-c, 419

21. (1996) 5 SCC 530 : 1996 SCC (Cri) 1038, Buddhi Kota Subbarao
v. K. Parasaran 424b-c

22. (1995) 1 SCC 421 : 1995 SCC (Cri) 239, Chandra Shashi v. Anil
Kumar Verma 423d-e

23. (1992) 4 SCC 666 : 1993 SCC (Cri) 17, Karamjeet Singh v. Union
of India 428d-e

24. (1992) 4 SCC 653 : 1993 SCC (Cri) 22, Simranjit Singh Mann v.
Union of India 428

25. (1992) 4 SCC 305 : 1993 SCC (Cri) 36, Janata Dal v. H.S.
Chowdhary 429
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26. (1989) 1 SCC 494, Kiran Bedi v. Committee of Inquiry 433a-b

27. (1981) 2 SCC 436 : 1981 SCC (Cri) 471, Kirit Kumar Chaman Lal
Kundaliya v. Union of India 431c-d

28. 1981 Supp SCC 87, S.P. Gupta v. Union of India 428

29. (1980) 3 SCC 141 : 1980 SCC (Cri) 649, P.S.R. Sadhanantham
v. Arunachalam 422b-c

30. (1978) 2 SCC 479 : 1978 SCC (Cri) 291, Sham Lal, In re 431e-f

31. (1976) 1 SCC 671, Jasbhai Motibhai Desai v. Roshan Kumar 429

32. (1969) 3 SCC 238, Samant N. Balkrishna v. George Fernandez 432

33. (1969) 1 SCC 110, Tilokchand Motichand v. H.B. Munshi 423d-e

34. AIR 1967 SC 1335 : 1967 Cri LJ 1204, Ghulam Sarwar v. Union
of India 431c-d

35. AIR 1951 SC 41, Charanjit Lal Chowdhury v. Union of India 430

Page: 407

The Judgment of the Court was delivered by

SWATANTER KUMAR, J.— Challenge in the present appeal is to the order dated 7-3-
20111 passed by a Division Bench of the High Court of Judicature of Allahabad (Lucknow
Bench). The operative part of the order reads as under: (AIC pp. 277-78, paras 4-5)
“4. … In view of all the aforesaid and particularly for the reasons that Writ Petition
No. 111 (H/C) of 2011 was filed on the instructions of Kishore Samrite (who has also
sworn the affidavit in support of the writ petition) which contained wild
allegations/insinuation against Shri Rahul Gandhi and questions the virtue and modesty
of a young girl of 22 years Kumari Kirti Singh, we dismiss this writ petition with costs of
Rs 50,00,000 (fifty lakhs). Out of the cost amount, Rs 25,00,000 (twenty-five lakhs)
shall be paid to Kumari Kirti Singh and Rs 20,00,000 (twenty lakhs) to Shri Rahul
Gandhi, Opposite Party 6. The cost amount shall be deposited within a period of one
month with the Registrar of this Court, failing which, the Registrar shall take necessary
action for recovery of the amount as land revenue.
We also record our special note of appreciation for Shri Karamveer Singh, Director
General of Police, U.P. (a highly decorated police officer), for producing the alleged
detenues within the time-frame as directed in the order. Thus, for all the promptness
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and sincerity shown, in the midst of serious law and order problems all over the State
on account of some agitation, in obeying and complying with the directions, we direct
payment of Rs 5,00,000 (five lakhs) towards a reward to the DGP. We also record our
appreciation for Shri Jyotindra Misra, learned Advocate General and the State
Government for showing concern in this matter.
We also direct the Director, Central Bureau of Investigation, to register case against
Kishore Samrite, the websites referred to in Writ Petition No. 111 (H/C) of 2011 and all
other persons who are found involved in the plot, if any, hatched in order to frame up
Shri Rahul Gandhi, Member of Parliament from Amethi. We also appreciate Shri
Gajendra Pal Singh, author of Writ Petition No. 125 (H/C) of 2011 for approaching this
Court in order to save the reputation of Shri Rahul Gandhi and the family of alleged
detenues at the hands of vested interests responsible for filing Writ Petition No. 111
(H/C) of 2011.
Till the investigation continues and the websites in question are not cleared by CBI,
their display in India shall remain banned. The Director, CBI, shall ensure compliance
with this order forthwith. He shall also prepare a list of such other websites which are
involved in display of scandalous information about the functionaries holding high
public offices and submit a report in respect thereof on the next date of hearing.

Page: 408

5. Thus, Writ Petition No. 125 (H/C) of 2011 is partly disposed of to the extent
insofar as it relates to production of the alleged detenues. However, it shall remain
pending in respect of notice issued to the Registrar General, Allahabad High Court and
for the submission of report by CBI as directed hereinabove. The matter shall remain
part-heard.
List the matter on 11-4-2011 for further hearing.
The Registrar of this Court shall issue copy of this order to all the parties concerned
including the Director, Central Bureau of Investigation, for immediate compliance.”
2. Challenge to the above impugned order1 , inter alia, but primarily is on the following
grounds:
(i) The Court could not have called for the records of Writ Petition No. 111 of 2011.
Consequently it lacked inherent jurisdiction to deal with and decide the said writ
petition. Furthermore, no order was passed by the competent authority i.e. the Chief
Justice of the High Court transferring that writ petition to the Bench dealing with Writ
Petition No. 125 of 2011.
(ii) The Bench showed undue haste and has not dealt with Writ Petition No. 125 of
2011 in accordance with the prescribed procedure.
(iii) The order was passed without notice and grant of appropriate hearing to the
present appellant.
(iv) The orders for imposition of costs and registration of a case against the appellant
by CBI are uncalled for and in any case are unjust and disproportionate as per the
known canons of law.
3. The stand on merits is that Writ Petition No. 125 of 2011 was, in fact and in law, not
a petition for habeas corpus and, thus, could not have been entertained and dealt with by
a Division Bench of that Court. The said petition primarily related to transfer of a petition
though in the garb of a prayer for production of the corpus. It did not satisfy the
prerequisites of a petition of habeas corpus.
4. Writ Petition No. 111 of 2011, even if not complete in its form, was maintainable and
the same could not have been dismissed by the Court as the prayer by the appellant in
that writ petition for habeas corpus was maintainable in view of the right to life and liberty
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of the petitioners stated therein, as enshrined in Article 21 of the Constitution of India,
was violated. The petition had been filed by the appellant as next friend and had not seen
the alleged detenues since 4-1-2007 when they were last seen in Amethi. According to the
appellant the representations made to various authorities had failed to yield any results.
Thus, that petition was not liable to be dismissed.

Page: 409

5. To the contra, it is contended on behalf of the State of Uttar Pradesh that:

(i) Writ Petition No. 111 of 2011 was an abuse of process of court. The appellant had
not approached the Court with clean hands as the facts as were pleaded by him were
not correct to the knowledge of the appellant.
(ii) The petition was mala fide and even the affidavit of the appellant was not in
conformity with the prescribed procedure.
(iii) The averments made in the affidavit and in the other documents were
contradictory in terms.
(iv) The appellant was neither the next friend of the stated petitioners (in Writ
Petition No. 111 of 2011) nor was he competent to institute such a petition. Moreover,
the petition itself did not satisfy the basic ingredients of a petition for habeas corpus.
(v) In view of the dismissal2 of Writ Petition No. 3719 of 2009 by the same High
Court and its non-mentioning by the petitioner in Writ Petition No. 111 of 2011, besides
being suppression of material facts was hit by the principles of res judicata.
(vi) Writ Petition No. 111 of 2011 had been rightly transferred3 by the Division Bench
and its dismissal1 and imposition of costs was in proper exercise of jurisdiction.
(vii) Lastly, it is contended that the next friend had given fictitious addresses of the
petitioners which are different than the ones given in the present appeal.
6. On behalf of Respondent 6, Shri Rahul Gandhi, it was contended that Writ Petition
No. 111 of 2011 is an abuse of process of court and, in fact, is a motivated petition
primarily based on “political mud-slinging”. While supporting the stand of Respondent 1,
the State of Uttar Pradesh, it is also contended that the appellant, Shri Kishore Samrite,
was a total stranger, had no knowledge of the facts and, therefore, had no right to file the
petition as next friend. It was not a case of private detention and the petition filed by the
appellant was not in conformity with the rules. The petition was primarily aimed at hurting
the reputation and image of Respondent 6 out of ulterior motives and political vendetta.
7. According to Respondent 7, the Central Bureau of Investigation (for short “CBI”), it
had investigated the matter and found that it was not a case of detention and, therefore,
the petition for habeas corpus was not maintainable. It had, in furtherance to the order of
the Court, registered a case on 11-3-2011 being RC No. 219-2011-(E)2002 under
Sections 120-B, 181, 191, 211, 469, 499 and 500 of the Penal Code, 1860 (IPC). CBI
could not

Page: 410

complete the investigation because of the order of stay passed by this Court on 6-4-20114 .
From the limited investigation which was conducted during that period and from the
statement of Shri Balram Singh and other witnesses, it came to light that nothing had
happened on 3-12-2006 as alleged by the appellant. In fact, the persons and the
addresses given in the petition were found to be fictitious and non-existent. Shri Balram
Singh had not supported the version advanced by the appellant. On the contrary, he had
belied the entire version and categorically denied the allegations and informed that the
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name of his wife and daughter were incorrectly mentioned as Smt Sushila and Sukanya
Devi. In regard to the website, CBI stated that the three suspected websites were posted
outside the geographical limits of our country and the originating IP address could not be
traced and further investigation had to be stopped. It was specifically contended on behalf
of CBI that the appellant had made no enquiry, had no personal knowledge and that the
litigation had been funded from sources other than appellant's own sources.

8. Lastly, Respondent 8 in this appeal, Shri Gajendra Pal Singh, who was the petitioner
in Writ Petition No. 125 of 2011, has stated that he had filed that petition bona fide while
Writ Petition No. 111 of 2011 was based upon a false affidavit, public justice system has
been abused by the petitioner in that case and he has committed perjury. According to
Respondent 8, Writ Petition No. 125 of 2011 was necessitated and he had the right to file
the habeas corpus petition as next friend of the petitioners stated therein.
9. As is evident from the varied stand taken by the respective parties, they are not ad
idem in regard to the factual matrix of the case. The facts as they emerge from the record
before this Court can usefully be noticed as follows: the appellant, Shri Kishore Samrite,
an ex-Member of Legislative Assembly of Madhya Pradesh, elected on the ticket of
Samajwadi Party from the legislative constituency of Tehsil Lanji in District Balaghat,
Madhya Pradesh,

Page: 411

instituted a writ petition in the High Court of Judicature of Allahabad being Writ Petition
No. 111 of 2011 acting as next friend of one Sukanya Devi, Balram Singh and Sumitra
Devi. The address of all these three persons was given as 23/12, Medical Chowk, Sanjay
Gandhi Marg, Chhatrapati Shahu Ji Maharaj Nagar, Uttar Pradesh. According to the
appellant, these three persons were kept in illegal detention by Respondent 6 and were
incapacitated to file the writ petition. It was averred in the petition filed by him before the
High Court that he came to know from certain websites viz. www.indybay.org,
www.arizona.indymedia.org and www.intellibriefs.blogspot.com, which contained news
items stating that on the night of 3-12-2006, while on a tour of his parliamentary
constituency in Amethi, Respondent 6, along with six of his friends (two from Italy and
four from Britain) committed rape on Sukanya Devi, daughter of Balram Singh. The
appellant placed the said news reports on record along with the writ petition.

10. The writ petition also contained the averment that Balram Singh is a Congress
worker in Amethi Constituency and Sukanya Devi along with Sumitra Devi wanted to
report the said incident but the authorities concerned did not lodge the complaint. They
approached various other authorities but to no avail. The appellant specifically averred that
he had not seen all the three persons in public for a long time, particularly since 4-1-2007,
when they were last seen in Amethi. He claims to have visited Amethi to verify these facts
and also a couple of times thereafter. Lastly, on 12-12-2010, he visited the place where all
the three persons lived, but found the same locked. The incident was reported to various
authorities, including the Chief Minister, the Home Minister, Chief Secretary of the State,
Governor and the other authorities of the State. The only communication he received was
from the office of the Governor wherein it was said that his application had been sent to
the State Government for proper action. Invoking the right to life and liberty as enshrined
under Article 21 of the Constitution of India on behalf of the three named petitioners in
the writ petition and alleging that Respondent 6 would influence any fruitful investigation,
the appellant prayed for issuance of a writ of habeas corpus commanding the opposite
party particularly Respondent 6 to produce the petitioners before the Court and for passing
any other appropriate order or direction.
11. Before we refer to the events subsequent to the filing of Writ Petition No. 111 of
2011, it must be noticed that a person named Ram Prakash Shukla, a practising advocate
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at Lucknow, who claimed himself to be a human rights activist and a public-spirited
person had earlier instituted a writ petition on the same facts being Writ Petition No. 3719
of 2009 tilted as Ram Prakash Shukla v. Union of India. He also stated that he had got
information from the internet website about the rape of Ms Sukanya Devi in the evening of
3-12-2006 and no action was being taken on the basis of the said report. He further stated
that Congress men had threatened to kill both, Smt Sumitra Devi and Sukanya Devi, if
they raised the issue. According to him they had stayed at Delhi for over a fortnight to
meet the authorities which they ultimately could not. It was stated that they are missing
since then and were

Page: 412

not traceable. On the basis of the news report, though an offence under Section 376 IPC
was made out, yet no FIR was being registered by the authorities. In that writ petition,
Ram Prakash Shukla had made the following prayers:

“(i) Issue a writ, order or direction in the nature of mandamus commanding Opposite
Parties 1 to 4 to ensure the lodging of the FIR and to refer it for investigation to
independent agency like SIT or CBI.
(ii) Issue a writ, order or direction in the nature of habeas corpus commanding
Respondents 1 to 4 to search and produce Ms Sukanya Devi, her mother Smt Sumitra
Devi, her father Balram Singh as well as videographer Mr Drupadh and the CNN-IBN
cameramen before this Hon'ble Court.
(iii) Issue a writ, order or direction in the nature of mandamus directing Respondents
5 and 6 (the National Human Rights Commission and the National Commission for
Women) to submit the report of the investigation if any, done by them on the complaint
lodged by Ms Sukanya Devi.
(iv) Issue any other order or directions which this Hon'ble Court may deem fit and
proper under the facts and circumstances of the case in favour of the petitioner in the
interest of justice.
(v) Allow the costs of the writ petition in favour of the petitioner.”
12. This writ petition was heard by a Division Bench of the Allahabad High Court at
Lucknow and was dismissed by a detailed judgment dated 17-4-20092 . The Court
specifically noticed that before passing a direction for lodging of an FIR, the Court is
required to see that the pleadings are absolutely clear, specific and precise and that they
make out a charge or criminal offence, which prima facie is supported by cogent and
reliable evidence and that the State machinery has failed to take appropriate action in
accordance with law for no valid reason. In absence thereof, the Court cannot issue such a
direction. The Court recorded its complete dissatisfaction about the correctness of the
allegations made in the writ petition as they were not supported by any reliable or cogent
evidence. The Court, while declining to grant the reliefs prayed for, dismissed the writ
petition. The operative part of the judgment reads as under:
“So far the petitioner's plea that the respondents may be required to inform the
Court, whether any such incident had taken place or not, suffice would be to mention
that in the absence of clear and precise pleadings with no supporting evidence, the
Court will not make any roving and fishing enquiry.
The writ petition does not make any case for grant of the reliefs claimed.
The writ petition has no force, which is being dismissed.”

Page: 413
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13. It may be noticed that Writ Petition No. 3719 of 2009 itself was instituted in the
year 2009 nearly three years after the alleged news and was dismissed vide order dated
17-4-20092 . It was in the beginning of the year 2011 that the present appellant instituted
Writ Petition No. 111 of 2011 in the Allahabad High Court. The latter writ petition was filed
by the appellant herein as next friend of the three petitioners, namely, Sukanya Devi,
Balram Singh and Sumitra Devi, all residents of 23/12, Medical Chowk, Sanjay Gandhi
Marg, Chhatrapati Shahu Ji Maharaj Nagar, Uttar Pradesh relying upon the website news
relating to the alleged occurrence of 2006 and making the same allegations, including
illegal detention of the petitioners by Respondent 6, and praying as follows:
“WHEREFOR, it is most humbly prayed that this Hon'ble Court may be pleased to
1. issue a writ of or writ, order or direction in the nature of habeas corpus
commanding the opposite parties, particularly Opposite Party 6, to produce the
petitioners before this Hon'ble Court and set them at liberty.
2. issue any other order or direction which it deems fit and proper in the present
circumstances, in favour of the petitioners, in the interest of justice.
3. award the costs of the petition to the petitioners.”
14. This writ petition was listed before a Single Judge of the Allahabad High Court who,
vide order dated 1-3-20115 directed issuance of notice to Respondent 6 to submit his
reply. The matter was to be listed before the Court after service of notice. During the
pendency of this writ petition, Respondent 8, Shri Gajendra Pal Singh, again acting as
next friend of Sukanya Devi, Shri Balram Singh and Smt Sumitra Devi alias Mohini Devi,
all residents of Ward No. 5, near Gurdwara, Town Area Amethi District, Chhatrapati Shahu
Ji Maharaj Nagar, Uttar Pradesh filed Writ Petition No. 125 of 2011 on 4-3-2011 stating
that a false Writ Petition No. 111 of 2011 was filed by Shri Kishore Samrite as next friend
and that it was politically motivated to harm the reputation of the opposite party. Further
that Shri Kishore Samrite was neither the next friend of the petitioners in that petition nor
had any interest in the liberty of those petitioners. Respondent 8, Shri Gajendra Pal Singh
claimed to be a neighbour of Shri Balram Singh, father of Sukanya and husband of Smt
Sumitra alias Mohini Devi. According to him, when the three petitioners in Writ Petition
No. 125 of 2011 were not seen in their house for some time, he approached Police Station,
Amethi, to lodge a complaint but the police authorities refused to file/register the
complaint on the ground that the petitioners were in the custody of the police as they had

Page: 414

committed some wrong. Seeing that right to life and liberty of the petitioners was
involved, he prayed for the following reliefs:

“WHEREFOR it is most respectfully prayed that this Hon'ble Court may kindly be
pleased to:
(a) Issue a writ of or writ, order or direction in the nature of habeas corpus
commanding the opposite parties to produce the petitioners before this Hon'ble
Court and set them at liberty.
(b) To call the record of Writ Petition No. 111 (H/C) of 2011 and connect with this
present writ petition. The order passed in Writ Petition No. 111 (H/C) of 2011 be
reviewed and recalled.
(c) To order the investigation by the appropriate agency.
(d) Issue any other order or direction which is deemed fit and proper in the
present circumstances in favour of the petitioners, in the interest of justice.
(e) Award the costs of the petition to the petitioners.”
15. This petition was taken up by a Division Bench of the Allahabad High Court and the
Court passed the following order on 4-3-20113 :
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“In view of all the aforesaid, we direct that the records of Writ Petition No. 111 (H/C)
of 2011, said to be pending before a learned Single Judge, shall be connected with this
writ petition. Besides, we also direct that the Director General of Police, U.P., shall
produce the petitioners, in particular, Sukanya Devi, on the next date of hearing i.e. 7-3
-2011. However, we make it clear that this direction to the Director General of Police,
U.P., shall not be construed to mean that the detenu is in illegal custody of the State
authorities and the Director General of Police, U.P., in this case shall function only as an
officer of the Court for the purpose of production of detenu.”
16. The Court directed3 transfer of Writ Petition No. 111 of 2011 and directed tagging of
the same with Writ Petition No. 125 of 2011, besides issuing notice to the Director General
of Police, U.P. to produce the petitioners on 7-3-2011. In Writ Petition No. 125 of 2011,
the Director General of Police filed a personal affidavit. According to him, the
Superintendent of Police, Chhatrapati Shahu Ji Maharaj Nagar, while noticing the
allegations made in both the writ petitions reported that the address mentioned in Writ
Petition No. 111 of 2011 was wrong and there was no such place in the town of Amethi
with the name of Medical Chowk, Sanjay Gandhi Marg and the address mentioned in Writ
Petition No. 125 of 2011 was the correct address of Shri Balram Singh who lived there in
the past. On 3-12-2007, Balram Singh had sold the plot, which was in the name of his
wife, Smt Sushila Singh, to one Smt Rekha and, thereafter he himself shifted to Village
Hardoia, Police Station Kumar Ganj, District Faizabad. Even the house adjacent to the plot
was sold off by Balram Singh to Dr Vikas

Page: 415

Shukla who was residing at the said village with his entire family. It was stated that
Balram Singh was living in Village Hardoia with his wife and four children, three daughters
and one son. The name of their eldest daughter is Kumari Kirti Singh, aged about 21
years. She had passed her BSc examination in the year 2009-2010. Balram Singh had
stated to the police that he knew Gajendra Pal Singh but did not know Kishore Samrite.
According to this affidavit, Balram Singh also informed the police that in the year 2006
some men claiming to be media persons had come to his house in Amethi and asked his
wife after showing photograph of Sukanya Devi, if she was her daughter. Upon this, his
wife produced their daughter before them and told them that the girl in the photograph
was different than their daughter. Further, Balram Singh also stated to the police that they
had never authorised any advocate or anybody else to institute any writ petition in the
court. In this very affidavit, in regard to the incident of 3-12-2006, the DGP has referred
to the following statement of Balram Singh:

“It has also been stated by Shri Balram Singh that neither he nor his wife Sushila
Singh nor daughter Kirti Singh has ever made any allegation either on 3-12-2006 or
before or after that against Shri Rahul Gandhi or anybody else; nor has any writ petition
been preferred in the Hon'ble High Court making any kind of allegations. He has never
authorised any advocate or anybody else to institute any writ petition.”
17. The ration card and PAN card of Balram Singh was produced during the
investigation. It is also noticed that Sukanya and Kirti, the name mentioned in Writ
Petition No. 125 of 2011 partially matches the particulars of daughter of Balram Singh and
they have no relation whatsoever to any of the next friend in either of the writ petition.
Shri Balram Singh, Km Kirti Singh and Smt Sushila Singh, all three were produced by the
Director General of Police in Court.
18. When Writ Petition No. 125 of 2011 came up for hearing before the Court on 7-3-
2011, the Division Bench passed the detailed order impugned1 in the present appeal. Vide
this order, Writ Petition No. 111 of 2011 was disposed of while Writ Petition No. 125 of
2011 was partly disposed of and, as aforenoticed, Director of CBI was directed to register
a case against Shri Kishore Samrite and all other persons involved in the plot. The Court
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also imposed costs of Rs 50,00,000 which was to be distributed as per the order. The
contention raised was that the counsel appearing for the petitioner in Writ Petition No. 111
of 2011 was not given the opportunity of hearing by the Bench before passing the
impugned order and, in fact, the counsel was standing in the Court when the order was
being dictated.
19. At this stage, we may also notice that according to the appellant, he was not aware
of Writ Petition No. 3719 of 2009 having been filed or the orders passed by the Bench
thereupon. The appellant has also stated that there was no urgency for taking up the
matter on that very day and, in any

Page: 416

case, Writ Petition No. 111 of 2011 could not have been transferred by that Bench. The
appellant in the present appeal has even gone to the extent of saying that the girl Km Kirti
Singh has been implanted in place of Sukanya Devi and even the name of the mother has
been wrongly described. No notice is stated to have been given to the petitioner in Writ
Petition No. 111 of 2011. It is contended that Writ Petition No. 111 of 2011 had been filed
in consonance with the proviso to Rule 1(2) of Chapter XXI of the Allahabad High Court
Rules, 1952 under which habeas corpus against a private person was maintainable and
could be listed before a Single Judge. Allegations have been made in Writ Petition No. 125
of 2011 calling the present appellant, petitioner in Writ Petition No. 111 of 2011, as
mentally challenged. The Division Bench dealing with Writ Petition No. 125 of 2011 could
not have dealt with Writ Petition No. 111 of 2011 and could not have exercised its
appellate jurisdiction. The costs imposed upon the appellant is exorbitant and without any
basis.

20. In the background of the above factual matrix and the stand taken by the
respective parties, we shall now proceed to examine the contentions raised before the
Court by the learned counsel appearing for the parties. For this purpose, we would deal
with various aspects of the case under different heads.
Whether there was violation of principles of natural justice and whether transfer
of Writ Petition No. 111 of 2011 was in accordance with law?
21. It is contended that the impugned order dated 7-3-20111 has been passed in
violation of the principles of natural justice. No adequate opportunity was granted to the
present appellant to put forward his case. Writ Petition No. 111 of 2011 had been
transferred to the Division Bench without even issuing notice to the appellant. The order
dated 4-3-20113 had not directed issuance of notice. It is only vide order dated 7-3-20111
that the Registrar of the High Court was directed to issue copy of the order to all the
parties concerned for immediate compliance. Absence of notice and non-grant of adequate
hearing has caused serious prejudice to the appellant and the order is liable to be set
aside on this sole ground. It is also contended that the appellant's counsel was present
only when the order was being dictated and had no notice of the hearing. On the contrary,
the contention on behalf of Respondent 1, State of Uttar Pradesh, and other parties is that
the counsel for the appellant was present and had due notice of hearing of Writ Petitions
Nos. 125 of 2011 and 111 of 2011 and as such there was neither any violation of the
principles of natural justice nor has any prejudice been caused to the appellant.
22. Compliance with the principle of audi alteram partem and other allied principles of
natural justice is the basic requirement of the rule of law. In fact, it is the essence of
judicial and quasi-judicial functioning, and particularly

Page: 417
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the courts would not finally dispose of a matter without granting notice and adequate
hearing to the parties to the lis. From the record i.e. in the orders dated 4-3-20113 as well
as 7-3-20111 it has not been specifically recorded nor is it implicitly clear that a notice was
directed to the petitioners in Writ Petition No. 111 of 2011 and they were given
opportunity to address the Court. Lack of clarity in this behalf does raise a doubt in the
mind of the Court that the appellant did not get a fair opportunity to put forward his case
before the Division Bench. The fact that we have issued notice to all the parties concerned
in both the writ petitions bearing Nos. 125 of 2011 and 111 of 2011, have heard them at
great length and propose to deal with and dispose of both these writ petitions in
accordance with law, renders it unnecessary for this Court to examine this aspect of the
matter in any further detail. Suffice it to note that we have heard the counsel appearing
for the parties on all aspects including maintainability, jurisdiction as well as merits of
both the petitions, which issues we shall shortly proceed to deal with hereinafter. Thus,
this submission of the appellant need not detain us any further.

23. From the above narrated facts it is clear that a petition for habeas corpus (Writ
Petition No. 111 of 2011) had been filed by the present appellant while referring to the
news on the websites in relation to the incident dated 3-12-2006 (in Paras 3 and 4) to the
effect that since the petitioners, because of their illegal detention by private Opposite
Party 6 are incapacitated to file the instant writ petition and also that those petitioners
were in illegal detention of the private Opposite Party 6 and they have not been seen since
4-1-2007. This writ petition was treated as private habeas corpus and was listed before a
Single Judge of the Allahabad High Court.
24. Rule 1 of Chapter XXI of the Allahabad High Court Rules provided that an
application under Article 226 of the Constitution for a writ in the nature of habeas corpus,
except against private custody, if not sent by post or telegram, shall be made to the
Division Bench appointed to receive applications or, on any day on which no such Bench is
sitting, to the Judge appointed to receive applications in civil matters. In the latter case,
the Judge shall direct that the application be laid before a Division Bench for orders. In
terms of proviso to this Rule, it is provided that an application under Article 226 of the
Constitution in the nature of habeas corpus directed against private custody shall be made
to the Single Judge appointed by the Chief Justice to receive such an application. The clear
analysis of the above Rule shows that habeas corpus against a private custody has to be
placed before a Single Judge while in the case of custody other than private custody, the
matter has to be placed before a Division Bench. It appears that on the strength of this
Rule, Writ Petition No. 111 of 2011 was listed before the Single Judge of Allahabad High
Court.

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25. The roster and placing of cases before different Benches of the High Court is
unquestionably the prerogative of the Chief Justice of that Court. In the High Courts,
which have Principal and other Benches, there is a practice and as per rules, if framed,
that the seniormost Judge at the Benches, other than the Principal Bench, is normally
permitted to exercise powers of the Chief Justice, as may be delegated to the seniormost
Judge. In absence of the Chief Justice, the seniormost Judge would pass directions in
regard to the roster of the Judges and listing of cases. Primarily, it is the exclusive
prerogative of the Chief Justice and does not admit any ambiguity or doubt in this regard.
26. Usefully we can refer to some judgments of this Court where such position has been
clearly stated by this Court. In State of Rajasthan v. Prakash Chand6 , a three-Judge Bench
of this Court was dealing with the requirement of constitution of the Benches, issuance of
daily cause-list and the powers of the Chief Justice in terms of the Rajasthan High Court
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Ordinance, 1949 read with Article 225 of the Constitution of India. The Court held as
under: (SCC pp. 14-15 & 22, paras 10 & 24)
“10. A careful reading of the aforesaid provisions of the Ordinance and Rule 54 shows
that the administrative control of the High Court vests in the Chief Justice of the High
Court alone and that it is his prerogative to distribute business of the High Court both
judicial and administrative. He alone, has the right and power to decide how the
Benches of the High Court are to be constituted: which Judge is to sit alone and which
cases he can and is required to hear as also as to which Judges shall constitute a
Division Bench and what work those Benches shall do. In other words the Judges of the
High Court can sit alone or in Division Benches and do such work only as may be
allotted to them by an order of or in accordance with the directions of the Chief Justice.
That necessarily means that it is not within the competence or domain of any Single or
Division Bench of the Court to give any direction to the Registry in that behalf which
will run contrary to the directions of the Chief Justice. Therefore in the scheme of things
judicial discipline demands that in the event a Single Judge or a Division Bench
considers that a particular case requires to be listed before it for valid reasons, it should
direct the Registry to obtain appropriate orders from the Chief Justice. The puisne
Judges are not expected to entertain any request from the advocates of the parties for
listing of case which does not strictly fall within the determined roster. In such cases, it
is appropriate to direct the counsel to make a mention before the Chief Justice and
obtain appropriate orders. This is essential for smooth functioning of the Court. Though,
on the judicial side the Chief Justice is only the ‘first amongst the equals’, on the
administrative side in the matter of constitution of Benches and making of roster, he
alone is vested with the necessary powers. That the

Page: 419

power to make roster exclusively vests in the Chief Justice and that a daily cause-list is to
be prepared under the directions of the Chief Justice as is borne out from Rule 73, which
reads thus:

‘73. Daily cause-list.—The Registrar shall subject to such directions as the Chief
Justice may give from time to time cause to be prepared for each day on which the
Court sits, a list of cases which may be heard by the different Benches of the Court.
The list shall also state the hour at which and the room in which each Bench shall sit.
Such list shall be known as the Day's List.’
* * *
24. … The correctness of the order of the Chief Justice could only be tested in judicial
proceedings in a manner known to law. No Single Judge was competent to find fault
with it.”
(emphasis in original)
27. In view of the above discussion, the Court amongst others, stated the following
conclusions: (Prakash Chand case6 , SCC p. 39, para 59)
“(1) That the administrative control of the High Court vests in the Chief Justice
alone. On the judicial side, however, he is only the first amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone has the prerogative to
constitute Benches of the court and allocate cases to the Benches so constituted.
(3) That the puisne Judges can only do that work as is allotted to them by the Chief
Justice or under his directions.
(4) That till any determination made by the Chief Justice lasts, no Judge who is to sit
singly can sit in a Division Bench and no Division Bench can be split up by the Judges
constituting the Bench themselves and one or both the Judges constituting such Bench
sit singly and take up any other kind of judicial business not otherwise assigned to
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them by or under the directions of the Chief Justice.”
(emphasis in original)
28. Similarly, in State of U.P. v. Neeraj Choubey7 , the Court had directed appearance of
certain persons in the matter of selection to the post of Assistant Professor and treated the
matter as a writ petition in the nature of public interest litigation. The Court, while passing
widespread orders, in para 10 of the judgment held as under: (SCC p. 323)
“10. In case an application is filed and the Bench comes to the conclusion that it
involves some issues relating to public interest, the Bench may not entertain it as a
public interest litigation but the court has its option to convert it into a public interest
litigation and ask the Registry to place it before a Bench which has jurisdiction to
entertain the PIL as per the Rules, guidelines or by the roster fixed by the Chief Justice
but the Bench cannot convert itself into a PIL and proceed with the matter itself.”

Page: 420

29. Judicial discipline and propriety are the two significant facets of administration of
justice. Every court is obliged to adhere to these principles to ensure hierarchical discipline
on the one hand and proper dispensation of justice on the other. Settled canons of law
prescribe adherence to the rule of law with due regard to the prescribed procedures.
Violation thereof may not always result in invalidation of the judicial action but normally it
may cast a shadow of improper exercise of judicial discretion. Where extraordinary
jurisdiction, like the writ jurisdiction, is very vast in its scope and magnitude, there it
imposes a greater obligation upon the courts to observe due caution while exercising such
powers. This is to ensure that the principles of natural justice are not violated and there is
no occasion of impertinent exercise of judicial discretion.
30. In the present case there is no dispute to the fact that no order was passed by the
Chief Justice of Allahabad High Court or even the seniormost Judge, administratively
incharge of the Lucknow Bench, transferring Writ Petition No. 111 of 2011 for hearing from
a Single Judge before whom it was pending, to the Division Bench of that Court. On basis
of the allegations made in Writ Petition No. 111 of 2011, that matter had been listed
before the Single Judge. If this writ petition was improperly instituted before the Single
Judge of the High Court then it was for the Registry of that Court or any of the contesting
parties to that petition, to raise an objection in that behalf. The objection could relate to
the maintainability and/or jurisdiction on the facts pleaded. If Writ Petition No. 125 of
2011 was filed with a prayer for transfer of Writ Petition No. 111 of 2011 on the ground
stated in the petition, this power fell within the exclusive domain of the Chief Justice or
the Senior Judge incharge for that purpose. It does not appear to be apt exercise of
jurisdiction by the Division Bench to suo motu direct transfer of Writ Petition No. 111 of
2011 without leave of the Chief Justice of that Court as such action would ex facie amount
to dealing with matters relating to constitution and roster of the Benches. We have already
cited various judgments of this Court where matters relating to the roster and constitution
of the Benches fall within the exclusive domain of the Chief Justice of the High Courts
concerned. Transfer of a petition may not necessarily result in lack of inherent jurisdiction.
It may be an administrative lapse but normally would not render the Division Bench or
court of competent jurisdiction as lacking inherent jurisdiction and its orders being invalid
ab initio. Such an order may necessarily not be vitiated in law, particularly when the
parties participate in the proceedings without any objection and protest. This, however,
always will depend on the facts and circumstances of a given case. In the present case,
suffices it to note that transfer of Writ Petition No. 111 of 2011 by the Division Bench to its
own board was an order lacking administrative judicial propriety and from the record it
also appears that adequate hearing had not been provided to the writ petitioners before
dismissal of Writ Petition No. 111 of 2011 by the Division Bench.
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Abuse of process of court

31. Now, we shall deal with the question whether both or any of the petitioners in Civil
Writ Petitions Nos. 111 of 2011 and 125 of 2011 are guilty of suppression of material
facts, not approaching the court with clean hands, and thereby abusing the process of
court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to
some case law which would help us in dealing with the present situation with greater
precision.
32. The cases of abuse of process of court and such allied matters have been arising
before the courts consistently. This Court has had many occasions where it dealt with the
cases of this kind and it has clearly stated the principles that would govern the obligations
of a litigant while approaching the court for redressal of any grievance and the
consequences of abuse of process of court. We may recapitulate and state some of the
principles. It is difficult to state such principles exhaustively and with such accuracy that
would uniformly apply to a variety of cases. These are:
32.1. Courts have, over the centuries, frowned upon litigants who, with intent to
deceive and mislead the courts, initiated proceedings without full disclosure of facts and
came to the courts with “unclean hands”. Courts have held that such litigants are neither
entitled to be heard on the merits of the case nor are entitled to any relief.
32.2. The people, who approach the court for relief on an ex parte statement, are under
a contract with the court that they would state the whole case fully and fairly to the court
and where the litigant has broken such faith, the discretion of the court cannot be
exercised in favour of such a litigant.
32.3. The obligation to approach the court with clean hands is an absolute obligation
and has repeatedly been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those involved in litigation
do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the
court proceedings. Materialism, opportunism and malicious intent have overshadowed the
old ethos of litigative values for small gains.
32.5. A litigant who attempts to pollute the stream of justice or who touches the pure
fountain of justice with tainted hands is not entitled to any relief, interim or final.
32.6. The court must ensure that its process is not abused and in order to prevent
abuse of process of court, it would be justified even in insisting on furnishing of security
and in cases of serious abuse, the court would be duty-bound to impose heavy costs.
32.7. Wherever a public interest is invoked, the court must examine the petition
carefully to ensure that there is genuine public interest involved. The stream of justice
should not be allowed to be polluted by unscrupulous litigants.

Page: 422

32.8. The court, especially the Supreme Court, has to maintain the strictest vigilance
over the abuse of process of court and ordinarily meddlesome bystanders should not be
granted “visa”. Many societal pollutants create new problems of unredressed grievances
and the court should endure to take cases where the justice of the lis well justifies it.
(Refer: Dalip Singh v. State of U.P.8 , Amar Singh v. Union of India9 and State of
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Uttaranchal v. Balwant Singh Chaufal10 .)
33. Access jurisprudence requires courts to deal with the legitimate litigation whatever
be its form but decline to exercise jurisdiction, if such litigation is an abuse of process of
court. In P.S.R. Sadhanantham v. Arunachalam11 , the Court held: (SCC p. 148, paras 15-
16)
“15. The crucial significance of access jurisprudence has been best expressed by
Cappelletti:
‘The right of effective access to justice has emerged with the new social rights.
Indeed, it is of paramount importance among these new rights since, clearly, the
enjoyment of traditional as well as new social rights presupposes mechanisms for
their effective protection. Such protection, moreover, is best assured to be a
workable remedy within the framework of the judicial system. Effective access to
justice can thus be seen as the most basic requirement the most basic “human-
right”—of a system which purports to guarantee legal rights.’
16. We are thus satisfied that the bogey of busybodies blackmailing adversaries
through frivolous invocation of Article 136 is chimerical. Access to justice to every bona
fide seeker is a democratic dimension of remedial jurisprudence even as public interest
litigation, class action, pro bono proceedings, are. We cannot dwell in the home of
processual obsolescence when our Constitution highlights social justice as a goal. We
hold that there is no merit in the contentions of the writ petitioner and dismiss the
petition.”
34. It has been consistently stated by this Court that the entire journey of a Judge is to
discern the truth from the pleadings, documents and arguments of the parties, as truth is
the basis of the justice-delivery system.
35. With the passage of time, it has been realised that people used to feel proud to tell
the truth in the courts, irrespective of the consequences but that practice no longer proves
true, in all cases. The court does not sit simply as an umpire in a contest between two
parties and declare at the end of the combat as to who has won and who has lost but it
has a legal duty of its own, independent of parties, to take active role in the proceedings
and reach at the truth, which is the foundation of administration of justice. Therefore, the
truth should become the ideal to inspire the courts to pursue. This can be

Page: 423

achieved by statutorily mandating the courts to become active seekers of truth. To enable
the courts to ward off unjustified interference in their working, those who indulge in
immoral acts like perjury, prevarication and motivated falsehood, must be appropriately
dealt with. The parties must state forthwith sufficient factual details to the extent that it
reduces the ability to put forward false and exaggerated claims and a litigant must
approach the court with clean hands. It is the bounden duty of the court to ensure that
dishonesty and any attempt to surpass the legal process must be effectively curbed and
the court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as
a result of abuse of process of court. One way to curb this tendency is to impose realistic
or punitive costs.

36. The party not approaching the court with clean hands would be liable to be non-
suited and such party, who has also succeeded in polluting the stream of justice by
making patently false statements, cannot claim relief, especially under Article 136 of the
Constitution. While approaching the court, a litigant must state correct facts and come
with clean hands. Where such statement of facts is based on some information, the source
of such information must also be disclosed. Totally misconceived petition amounts to an
abuse of process of court and such a litigant is not required to be dealt with lightly, as a
petition containing misleading and inaccurate statement, if filed, to achieve an ulterior
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purpose amounts to an abuse of process of court. A litigant is bound to make “full and true
disclosure of facts”. (Refer: Tilokchand Motichand v. H.B. Munshi12 , A. Shanmugam v.
Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam13 , Chandra
Shashi v. Anil Kumar Verma14 , Abhyudya Sanstha v. Union of India15 , State of M.P. v.
Narmada Bachao Andolan16 , Kalyaneshwari v. Union of India17 .)
37. The person seeking equity must do equity. It is not just the clean hands, but also
clean mind, clean heart and clean objective that are the equi-fundamentals of judicious
litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et
injuria fieri locupletiorem, which means that it is a law of nature that one should not be
enriched by the loss or injury to another, is the percept for courts. Wide jurisdiction of the
court should not become a source of abuse of process of law by the disgruntled litigant.
Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by
extraneous considerations and imposes an obligation upon the litigant to disclose the true
facts and approach the court with clean hands.
38. No litigant can play “hide and seek” with the courts or adopt “pick and choose”.
True facts ought to be disclosed as the court knows law, but not

Page: 424

facts. One, who does not come with candid facts and clean breast cannot hold a writ of the
court with soiled hands. Suppression or concealment of material facts is impermissible to a
litigant or even as a technique of advocacy. In such cases, the court is duty-bound to
discharge rule nisi and such applicant is required to be dealt with for contempt of court for
abusing the process of court. (K.D. Sharma v. SAIL18 .)

39. Another settled canon of administration of justice is that no litigant should be

permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right
to unlimited drought upon the court time and public money in order to get his affairs
settled in the manner as he wishes. Easy access to justice should not be used as a licence
to file misconceived and frivolous petitions. (Buddhi Kota Subbarao v. K. Parasaran19 .)
40. In light of these settled principles, if we examine the facts of the present case, next
friends in both the petitions are guilty of suppressing material facts, approaching the court
with unclean hands, filing petitions with ulterior motive and finally for abusing the process
of court.
41. In this regard, first of all we may deal with the case of the appellant, Kishore
Samrite:
41.1. Firstly, he filed Writ Petition No. 111 of 2011 on vague, uncertain and incomplete
averments. In fact, he withheld the fact that the earlier Writ Petition No. 3719 of 2009 had
been dismissed2 by a Division Bench of the Allahabad High Court as back as on 17-4-
2009, while he instituted Writ Petition No. 111 of 2011 in the year 2011. The excuse put
forward by the appellant was that he did not know about the dismissal of that case. This
flimsy excuse is hardly available to the appellant as he claims to be a public person (ex-
MLA), had allegedly verified the facts and incidents before instituting the petition and
made the desired prayers therein. It is obvious that subject-matter of Writ Petition No.
3719 of 2009 must have received great publicity before and at the time of the dismissal of
the writ petition.
41.2. Secondly, without verification of any facts, the appellant made an irresponsible
statement that the petitioners Sukanya Devi, Shri Balram Singh and Smt Sumitra Devi
were in the illegal detention of Respondent 6. The averments made in the writ petition
were supported by an affidavit filed in the High Court stating that contents of Paras 1 and
3 to 15 were true, partly true to the knowledge and partly based on record while Paras 2
and 16 were believed to be correct as per legal advice received. This stood falsified from
the fact that the appellant did not even know the three petitioners, their correct addresses
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and identity.
41.3. Thirdly, in the writ petition in Para 10, it is stated that the petitioners were last
seen on 4-1-2007 in Amethi and the appellant had not seen them thereafter. The
appellant also claims in the same paragraph that the

Page: 425

facts came to his knowledge when he, in order to personally verify the facts, visited
Amethi a couple of times and also as late as in December 2010. From this, the inference is
that the petition was based upon the facts which the petitioner learnt and believed during
these visits. On the contrary, when he filed an affidavit in this Court on 25-7-2012, in Para
6 of the affidavit, he stated as under:

“… The petitioner has been the Member of ruling party in the State of M.P. and
because of his standing in the society, in 2007 he was called for by the Samajwadi
Party leadership, to contest Legislative Assembly Election from Constituency Lanji,
District Balaghat, Madhya Pradesh, he won the by-election and remained MLA, during 3-
11-2007 to 8-12-2008. True copy of the identity card is annexed herewith and marked
as Annexure P-8.
That the petitioner, from a young age since 1986 has been involved in social
activities, in State of Madhya Pradesh being a social activist, he has filed several writ
petitions before various High Courts, raising serious public and social issues, and the
issues concerning corruption and crime in politics, and the courts have been pleased to
entertain his writ petitions and grant reliefs in the several such writ petitions filed by
him. This list of writ petitions filed by the petitioner is annexed herewith and marked as
Annexure P-9.
That taking into account his standing and antecedent at the behest of the leader of
his political party the petitioner was called to C-1/135, Pandara Park, New Delhi in 2010
to meet the other senior leaders, who were in Delhi as Parliament was in session, where
he was appraised about the facts of the serious incident that had been reported from a
village in U.P. and in view of the fact that he had taken up several public causes in the
past he was requested to file a writ petition in the nature of a public interest litigation
in the High Court of Judicature of Allahabad, Lucknow Bench at Lucknow and thus the
writ petition came to be filed. Notice was issued in the said writ petition.”
42. Thus, there is definite contradiction and falsehood in the stand taken by the
petitioner in the writ petition and in the affidavit filed before this Court, as aforenoticed.
This clearly indicates the falsehood in the averments made and the intention of the
appellant to misguide the courts by filing such frivolous petitions. No details, whatsoever,
have been furnished to state as to how he verified the alleged website news of the incident
of 3-12-2006 and from whom. Strangely, he did not even know the petitioners and could
not even identify them. The prayer in the writ petition was for issuance of a direction in
the nature of habeas corpus to Respondent 6 to produce the petitioners. And lastly, the
writ petition is full of irresponsible allegations which, as now appears, were not true to the
knowledge of the petitioner, as he claimed to have acted as next friend of the petitioners
while he was no relation, friend or even a person known to the petitioners. His acting as
the

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next friend of the petitioners smacks of malice, ulterior motive and misuse of judicial
process.

43. The alleged website provides that the girl was missing. It was not reported there
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that she and her parents were in illegal detention of Respondent 6. So by no means, could
it be a case of habeas corpus.
44. Now, we would deal with Writ Petition No. 125 of 2011 instituted by Shri Gajender
Pal Singh, Respondent 8 in this appeal, being next friend of the petitioners Sukanya Devi,
Shri Balram Singh and Smt Sumitra Devi. The glaring factors showing abuse of process of
court and attempt to circumvent the prescribed procedure can be highlighted, inter alia,
but primarily from the following:
44.1. Shri Gajender Pal Singh also had no relationship, friendship or had not even
known the three petitioners.
44.2. In face of the statements made by the three petitioners before the police and
CBI, stating that they had never approached, asked or even expected Respondent 8 to act
as next friend, he had no authority to act as their next friend before the Court and pray for
such relief.
44.3. In the garb of the petition for habeas corpus, he filed a petition asking for
transfer of Writ Petition No. 111 of 2011, to which he was neither a party nor had any
interest.
44.4. Respondent 8 intentionally did not appear in Writ Petition No. 111 of 2011 raising
the question of jurisdiction or any other question but circumvented the process of court by
filing Writ Petition No. 125 of 2011 with the prayers including investigation by an authority
against the petitioner in Writ Petition No. 111 of 2011. Respondent 8, despite being a
resident of that very area and town, Amethi, did not even care to mention about the
dismissal of Writ Petition No. 3719 of 2009.
44.5. In the writ petition, he claimed to be a neighbour of the three petitioners but did
not even know this much that the petitioners had, quite some time back, shifted to Village
Hardoia in District Faizabad. He also stated in Para 5 of the writ petition that he was a
neighbour of the petitioners and having not seen them, had sought to lodge a police
report, which the authorities refused to take on the ground that the petitioners were in
custody of the police as they had committed some wrong. This averment, to the
knowledge of the petitioner, was false inasmuch as the Director General of Police, U.P. had
stated in his affidavit that they were never detained or called to the police station. In fact,
they had shifted their house to the aforestated village. Respondent 8 has, thus, for
obvious and with ulterior motive abused the process of court and filed a petition based on
falsehood, came to the court with unclean hands and even attempted to circumvent the
process of law by making motivated and untenable prayers. This petitioner (Respondent 8)
also made irresponsible allegations stating that Kishore Samrite, petitioner in Writ Petition
No. 111 of 2011, was a mentally challenged person.

Page: 427

45. From the above specific averments made in the writ petitions, it is clear that both
these petitioners have approached the Court with falsehoods, unclean hands and have
misled the courts by showing urgency and exigencies in relation to an incident of 3-12-
2006 which, in fact, according to the three petitioners and the police was false, have thus
abused the process of court and misused the judicial process. They maliciously and with
ulterior motives encroached upon the valuable time of the Court and wasted public money.
46. It is a settled canon that no litigant has a right to unlimited draught upon the court
time and public money in order to get his affairs settled in the manner as he wishes. The
privilege of easy access to justice has been abused by these petitioners by filing frivolous
and misconceived petitions. On the basis of incorrect and incomplete allegations, they had
created urgency for expeditious hearing of the petitions, which never existed. Even this
Court had to spend days to reach at the truth. Prima facie it is clear that both these
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petitioners have misstated facts, withheld true facts and even given false and incorrect
affidavits. They well knew that the courts are going to rely upon their pleadings and
affidavits while passing appropriate orders. The Director General of Police, U.P., was
required to file an affidavit and CBI directed to conduct investigation. Truth being the
basis of justice-delivery system, it was important for this Court to reach at the truth,
which we were able to reach at with the able assistance of all the counsel and have no
hesitation in holding that the case of both the petitioners suffered from falsehood, was
misconceived and was a patent misuse of judicial process. The abuse of process of court
and not approaching the court with complete facts and clean hands, has compelled this
Court to impose heavy and penal costs on the persons acting as next friends in the writ
petitions before the High Court. This Court cannot permit the judicial process to become
an instrument of oppression or abuse or to subvert justice by unscrupulous litigants like
the petitioners in the present case.
Locus standi
47. Having discussed the abuse of process of court and misuse of judicial process by
both the petitioners, the issue of locus standi would obviously fall within a very narrow
compass. The question of locus standi would normally be a question of fact and law both.
The issue could be decided with reference to the given facts and not in isolation. We have
stated the facts and the stand of the respective parties in some detail. Both, the appellant
and Respondent 8, had filed their respective writ petitions before the Allahabad High Court
as next friends of the three petitioners whose names have not been stated with complete
correctness in both the writ petitions. There has been complete contradiction in the
allegations made in the two writ petitions by the respective petitioners. According to the
appellant, the three stated petitioners were illegally detained by Respondent 6 while
according to Respondent 8 they were detained by the authorities. These contradictory and
untrue allegations are the very foundation of these writ petitions. It may also be

Page: 428

noticed that in both the writ petitions, baseless allegations in regard to the alleged
incident of 3-12-2006, involving Respondent 6, had also been raised.

48. Ordinarily, the party aggrieved by any order has the right to seek relief by
questioning the legality, validity or correctness of that order. There could be cases where a
person is not directly affected but has some personal stake in the outcome of a petition. In
such cases, he may move the court as a guardian or next friend for and on behalf of the
disabled aggrieved party. Normally, a total stranger would not act as next friend. In
Simranjit Singh Mann v. Union of India20 , this Court held that (SCC p. 657, para 7) a total
stranger to the trial commenced against the convicts, cannot be permitted to question the
correctness of the conviction recorded against some convicts unless an aggrieved party is
under some disability recognised by law, otherwise it would be unsafe or hazardous to
allow a third party to question the decision against him.
49. In S.P. Gupta v. Union of India21 , the Court stated: (SCC p. 219, para 24)
“24. But we must be careful to see that the member of the public, who approaches
the court in cases of this kind, is acting bona fide and not for personal gain or private
profit or political motivation or other oblique consideration. The court must not allow its
process to be abused by politicians and others….”
50. Dealing with the question of the next friend bringing a petition under Article 32 of
the Constitution, this Court in Karamjeet Singh v. Union of India22 , held as under: (SCC p.
670, para 3)
“We are afraid these observations do not permit a mere friend like the petitioner to
initiate the proceedings of the present nature under Article 32 of the Constitution. The
observations relied upon relate to a minor or an insane or one who is suffering from any
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other disability which the law recognises as sufficient to permit another person, e.g.
next friend, to move the Court on his behalf; for example see: Sections 320(4)(a), 330
(2) read with Sections 335(1)(b) and 339 of the Code of Criminal Procedure.
Admittedly, it is not the case of the petitioner that the two convicts are minors or
insane persons but the learned counsel argued that since they were suffering from an
acute obsession such obsession amounts to a legal disability which permits the next
friend to initiate proceedings under Article 32 of the Constitution. We do not think that
such a contention is tenable. The disability must be one which the law recognises.”
51. Dealing with public interest litigation and the cases instituted by strangers or
busybodies, this Court in the following cases cautioned the courts and even required that
they be dismissed at the threshold:

Page: 429

51.1. Janata Dal v. H.S. Chowdhary23 , SCC at p. 347: (SCC para 104)
“104. Sarkaria, J. in Jasbhai Motibhai Desai v. Roshan Kumar24 expressed his view
that the application of the busybody should be rejected at the threshold in the following
terms: (SCC p. 683, para 37)
‘It will be seen that in the context of locus standi to apply for a writ of certiorari,
an applicant may ordinarily fall in any of these categories: (i) “person aggrieved”;
(ii) “stranger”; (iii) busybody or meddlesome interloper. Persons in the last category
are easily distinguishable from those coming under the first two categories. Such
persons interfere in things which do not concern them. They masquerade as
crusaders for justice. They pretend to act in the name of pro bono publico, though
they have no interest of the public or even of their own to protect. They indulge in
the pastime of meddling with the judicial process either by force of habit or from
improper motives. Often, they are actuated by a desire to win notoriety or cheap
popularity; while the ulterior intent of some applicants in this category, may be no
more than spoking the wheels of administration. The High Court should do well to
reject the applications of such busybodies at the threshold.’”
51.2. R&M Trust v. Koramangala Residents Vigilance Group25 : (SCC pp. 110-11, para
25)
“25. In this connection reference may be made to a recent decision given by this
Court in Dattaraj Nathuji Thaware v. State of Maharashtra26 in which Hon'ble Pasayat, J.
has also observed as follows: (SCC p. 595, para 12)
‘12. Public interest litigation is a weapon which has to be used with great care and
circumspection and the judiciary has to be extremely careful to see that behind the
beautiful veil of public interest, an ugly private malice, vested interest and/or
publicity-seeking is not lurking. It is to be used as an effective weapon in the
armoury of law for delivering social justice to citizens. The attractive brand name of
public interest litigation should not be used for suspicious products of mischief. It
should be aimed at redressal of genuine public wrong or public injury and not be
publicity-oriented or founded on personal vendetta.’”
52. On the analysis of the above principles, it is clear that a person who brings a
petition even for invocation of a fundamental right must be a person having some direct or
indirect interest in the outcome of the petition on his behalf or on behalf of some person
under a disability and/or unable to have access to the justice system for patent reasons.
Still, such a person must act bona fide and without abusing the process of law. Where a
person is a

Page: 430
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stranger/unknown to the parties and has no interest in the outcome of the litigation, he
can hardly claim locus standi to file such petition. There could be cases where a public-
spirited person bona fide brings petition in relation to violation of fundamental rights,
particularly in habeas corpus petitions, but even in such cases, the person should have
some demonstrable interest or relationship to the involved persons, personally or for the
benefit of the public at large, in a PIL. But in all such cases, it is essential that the
petitioner must exhibit bona fides, by truthful and cautious exercise of such right. The
courts would be expected to examine such requirement at the threshold of the litigation in
order to prevent abuse of process of court. In the present case, both the appellant and
Respondent 8 are total strangers to the three mentioned petitioners. The appellant, in fact,
is a resident of Madhya Pradesh, belonging to a political party and was elected from
Constituency Tehsil Lanji in District Balaghat at Madhya Pradesh. He has no roots in
Amethi and, in fact, he was a stranger to that place. The appellant as well as Respondent
8 did not even know that the persons on whose behalf they have acted as next friend had
shifted their residence in the year 2010 to Hardoia in District Faizabad. They have made
false averments in the petition and have withheld true facts from the Court.

53. This Court, in Charanjit Lal Chowdhury v. Union of India27 , while discussing the
distinction between the rights and possibility of invocation of legal remedy by a company
and a shareholder, expressed the view that: (AIR p. 52, para 43)
“43. … This follows logically from the rule of law that a corporation has a distinct
legal personality of its own with rights and capacities, duties and obligations separate
from those of its individual members. As the rights are different and inhere in different
legal entities, it is not competent to one person to seek to enforce the right of another
except where the law permits him to do so. A well-known illustration of such exception
is furnished by the procedure that is sanctioned in an application for a writ of habeas
corpus. Not only the man who is imprisoned or detained in confinement but any person,
provided he is not an absolute stranger, can institute proceedings to obtain a writ of
habeas corpus for the purpose of liberating another from an illegal imprisonment.”
It is not a case of a mere third person moving the court simpliciter on behalf of persons
under alleged detention. It is a case of definite improprietory abuse of process of court,
justice and is a motivated attempt based on falsehood to misguide the Court and primarily
for publicity or political vendetta. More so, when the petitioners in the writ petitions have
categorically stated that they made no complaint of the alleged incident of 3-12-2006 and
never authorised, requested or approached either of the petitioners to move the court for
redressal of any grievance. The question of filing habeas corpus petitions on their behalf
would not arise because they

Page: 431

were living at their own house and enjoying all freedoms. According to them, they were
detained by none at any point of time either by Respondent 6 or the police authorities. In
face of this definite stand taken by these persons, the question of locus standi has to be
answered against both the petitioners. In fact, it is not only abuse of process of court but
also is a case of access to justice unauthorisedly and illegally. Their whole modus operandi
would be unacceptable in law. Thus, we have no hesitation in holding on the facts of the
present case that both the petitioners had no locus standi to approach the High Court of
Allahabad in the manner and method in which they did.

54. It was contended on behalf of the appellant as well as Respondent 8 that a petition
for habeas corpus is not struck by the rule of res judicata or constructive res judicata.
According to them, the decision of Writ Petition No. 3719 of 2009 was in no way an
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impediment for institution of the writ petition as in the case of habeas corpus every day
would be a fresh and a continuing cause of action. For this purpose, reliance has been
placed upon the judgment of this Court in Ghulam Sarwar v. Union of India28 and Kirit
Kumar Chaman Lal Kundaliya v. Union of India29 . We do not consider it necessary to
decide this question as a question of law in the facts and circumstances of the present
case particularly in view of the findings recorded by us on other issues. Suffice it to note
that the judgment of the Allahabad High Court dated 17-4-20092 in Civil Writ Petition No.
3719 of 2009 had attained finality as the legality or correctness thereof was not
challenged by any person. There can hardly be any doubt that upon pronouncement of this
judgment this case squarely fell in the public domain and was obviously known to both the
petitioners but they did not even consider it necessary to mention the same in their
respective writ petitions.
55. Another contention that has been raised on behalf of the appellant is that a petition
of habeas corpus lies not only against the executive authority but also against private
individual. Reliance is placed on Sham Lal, In re30 . As a proposition of law, there is no
dispute raised before us to this proposition. Thus, there is no occasion for this Court to
deliberate on this issue in any further elaboration.
56. Having dealt with various aspects of this case, now we must revert to the essence
of the present appeal on facts. The petitions instituted by the appellant and Respondent 8
were certainly an abuse of process of court. They have encroached upon the valuable time
of the courts. The contradictory stands taken before the courts and their entire case being
denied by the petitioners themselves clearly show that they have misused the judicial
process and have stated facts that are untrue to their knowledge. The alleged incident
which, according to the petitioners, police and CBI, never happened

Page: 432

and illegal detention of the petitioners has been falsified by the petitioners themselves in
the writ petitions. It is a matter of regret that the process of court has been abused by
unscrupulous litigants just to attain publicity and adversely affect the reputation of
another politician, Respondent 6. One of the obvious reasons which can reasonably be
inferred from the peculiar facts and circumstances of the case is the political rivalry.
According to the counsel appearing for Respondent 6, it is a case of political mud-slinging.
He has rightly contended that the websites information was nothing but secondary
evidence, as stated by this Court in Samant N. Balkrishna v. George Fernandez31 but not
even an iota of evidence has been placed on record of the writ petitions before the High
Court or even in the appeal before this Court, which could even show the remote
possibility of happening of the alleged rape incident on 3-12-2006. There is an affidavit by
the police and report by CBI to show that this incident never occurred and the three
petitioners have specifically disputed and denied any such incident or making of any
report in relation thereto or even in regard to the alleged illegal detention.

57. Political rivalry can lead to such ill-founded litigation. In Gosu Jayarami Reddy v.
State of A.P.32 , this Court observed that: (SCC p. 770, para 1)
“1. Political rivalry at times degenerates into personal vendetta where principles and
policies take a back seat and personal ambition and longing for power drive men to
commit the foulest of deeds to avenge defeat and to settle scores.”
These observations aptly apply to the facts of the present case particularly the writ
petition preferred by the appellant. At one place, he claims to have acted as a public figure
with good conscience but has stated false facts. On the other hand, he takes a somersault
and claims that he acted on the directives of the political figures. It is unworthy of a public
figure to act in such a manner and demonstrate a behaviour which is impermissible in law.
The appellant as well as Respondent 8 filed habeas corpus petitions claiming it to be a
petition for attainment of public confidence and right to life. In the garb of doctrines like
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the right to liberty and access to justice, these petitioners not only intended but actually
filed improper and untenable petitions, primarily with the object of attaining publicity and
causing injury to the reputation of others.
58. The term “person” includes not only the physical body and members but also every
bodily sense and personal attribute among which is the reputation a man has acquired.
Reputation can also be defined to be good name, the credit, honour or character which is
derived from a favourable public opinion or esteem, and character by report. The right to
enjoyment of a good reputation is a valuable privilege of ancient origin and necessary to
human society. “Reputation” is an element of personal security and is protected by the
Constitution equally with the right to enjoyment of life, liberty and property. Although
“character” and “reputation” are often used

Page: 433

synonymously, but these terms are distinguishable. “Character” is what a man is and
“reputation” is what he is supposed to be in what people say he is. “Character” depends
on attributes possessed and “reputation” on attributes which others believe one to
possess. The former signifies reality and the latter merely what is accepted to be reality at
present. (Ref. Kiran Bedi v. Committee of Inquiry33 and Nilgiris Bar Assn. v. T.K.
Mahalingam34 .) The methodology adopted by the next friends in the writ petitions before
the High Court was opposed to political values and administration of justice. In Kushum
Lata v. Union of India35 , this Court observed that (SCC p. 182, para 5) when there is
material to show that a petition styled as a public interest litigation is nothing but a
camouflage to foster personal disputes, the said petition should be dismissed by the
Court. If such petitions are not properly regulated and abuse averted, it becomes a tool in
unscrupulous hands to release vendetta and wreak vengeance as well.

59. In light of these legal principles, the appellant and, in fact, to a great extent even
Respondent 8 have made an attempt to hurt the reputation and image of Respondent 6 by
stating incorrect facts, that too, by abusing the process of court.
60. Coming to the judgment of the High Court under appeal it has to be noticed that
the appellant was deprived of adequate hearing by the High Court, but that defect stands
cured inasmuch as we have heard the parties concerned in both the writ petitions at
length. The transfer of Writ Petition No. 111 of 2011 was not in consonance with the
accepted canons of judicial administrative propriety. The imposition of such heavy costs
upon the petitioner was not called for in the facts and circumstances of the case as the
Court was not dealing with a suit for damages but with a petition for habeas corpus, even
if the petition was not bona fide. Furthermore, we are unable to endorse our approval to
the manner in which the costs imposed were ordered to be disbursed to the different
parties. Moreover, the question of paying rewards to the Director General of Police does not
arise as the police and the Director General of Police were only performing their duties by
producing the petitioners in the Court. They, in any case, were living in their own house
without restriction or any kind of detention by anyone. In fact, the three petitioners have
been compulsorily dragged to court by the petitioner in Writ Petition No. 125 of 2011.
They had made no complaint to any person and thus, the question of their illegal
detention and consequential release would not arise. These three persons have been used
by both the petitioners and it is, in fact, they are the ones whose reputation has suffered a
serious setback and were exposed to inconvenience of being dragged to courts for no fault
of their own. We hardly see any attributes of the police except performance of their duties
in the normal course so as to entitle them to exceptional rewards. Certainly, the reputation
of Respondent 6 has also been damaged, factually

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and in law. Both these petitions are based on falsehood. The reputation of Respondent 6 is
damaged and his public image diminished due to the undesirable acts of the appellant and
Respondent 8.

61. For these reasons, we are unable to sustain the order under appeal in its entirety
and while modifying the judgments under appeal, we pass the following order:
61.1. Writ Petition No. 111 of 2011 was based upon falsehoods, was an abuse of
process of court and was driven by malice and political vendetta. Thus, while dismissing
this petition, we impose exemplary costs of Rs 5 lakhs upon the next friend, costs being
payable to Respondent 6.
61.2. The next friend in Writ Petition No. 125 of 2011 had approached the court with
unclean hands, without disclosing complete facts and misusing the judicial process. In
fact, he filed the petition without any proper authority, in fact and in law. Thus, this
petition is also dismissed with exemplary costs of Rs 5 lakhs for abuse of process of court
and/or for such other offences that they are found to have committed, which shall be
payable to the three petitioners produced before the High Court i.e. Ms Kirti Singh, Dr
Balram Singh and Ms Sushila alias Mohini Devi.
61.3. On the basis of the affidavit filed by the Director General of Police, U.P.,
statement of the three petitioners in the writ petition, CBI's stand before the Court, its
report and the contradictory stand taken by the next friend in Writ Petition No. 111 of
2011, we, prima facie, are of the view that the allegations against Respondent 6 in regard
to the alleged incident of rape on 3-12-2006 and the alleged detention of the petitioners,
are without substance and there is not even an iota of evidence before the Court to validly
form an opinion to the contrary. In fact, as per the petitioners (allegedly detained
persons), they were never detained by any person at any point of time.
61.4. CBI shall continue the investigation in furtherance to the direction of the High
Court against the petitioner in Writ Petition No. 111 of 2011 and all other persons
responsible for the abuse of process of court, making false statement in pleadings, filing
false affidavits and committing such other offences as the investigating agency may find
during investigation. CBI shall submit its report to the court of competent jurisdiction as
expeditiously as possible and not later than six months from the date of passing of this
order.
61.5. These directions are without prejudice to the rights of the respective parties to
take such legal remedy as may be available to them in accordance with law. We also make
it clear that the court of competent jurisdiction or CBI would not in any way be influenced
by the observations made in this judgment or even the judgment of the High Court. All
the pleas and contentions which may be raised by the parties are left open.
62. The appeal is disposed of in the above terms.
———
†
From the Judgment and Order dated 7-3-2011 of the High Court of Allahabad at Lucknow in WP No. 111 of 2011
1
Sukanya Devi v. State of U.P., (2011) 103 AIC 273 : (2011) 73 ACC 544
2 Ram Prakash Shukla v. Union of India, WP No. 3719 of 2009 (MB 3719/2009), order dated 17-4-2009 (All)
3
Sukanya Devi v. State of U.P., WP No. 125 of 2011, order dated 4-3-2011 (All)
4
Kishore Samrite v. State of U.P., SLP (Cri) No. 2817 of 2011, order dated 6-4-2011 (SC) wherein it was directed:

“1. Mr S.M. Royekwar, Advocate has filed an affidavit today in the Court which is taken on record. In the said
affidavit, it is stated that the deponent S.M. Royekwar, Advocate was refused an opportunity to argue his Writ
Petition (Crl.) No. 111 of 2011 which was tagged with Writ Petition (Crl.) No. 125 of 2011 when the matters
appeared before the High Court on 7-3-2011.

2. Ms Kamini Jaiswal, learned counsel appearing for the petitioner submits that filing of the WP (Crl.) No. 125 of
2011 and the prayer therein for tagging of WP (Crl.) No. 111 of 2011 was obviously intended to avoid hearing in
WP (Crl.) No. 111 of 2011 by the Hon'ble Single Judge who had ordered notice in that petition. Ms Jaiswal also
argues that the entertainment of WP (Crl.) No. 125 of 2011 was without jurisdiction as WP (Crl.) No. 111 of 2011
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was pending for the same relief though filed by a different party—meaning the petitioner herein. The counsel
contends that the direction passed in WP (Crl.) No. 125 of 2011 of tagging of WP (Crl.) No. 111 of 2011, which
was pending before the learned Single Judge, was also without jurisdiction especially when no orders were
obtained from the Chief Justice to that effect. She further argues that the amount of costs of Rs 50 lakhs is
excessive and the direction for holding an inquiry against the petitioner herein is unwarranted.

3. In that view, issue notice returnable within eight weeks. There shall be stay of the impugned order in the
meantime.”
5
Sukanya Devi v. State of U.P., WP No. 111 of 2011 (Habeas Corpus 111/2011), order dated 1-3-2011 (All)
6
(1998) 1 SCC 1
7
(2010) 10 SCC 320 : (2010) 3 SCC (Cri) 1281 : (2010) 2 SCC (L&S) 800
8
(2010) 2 SCC 114 : (2010) 1 SCC (Civ) 324
9
(2011) 7 SCC 69 : (2011) 3 SCC (Civ) 560
10
(2010) 3 SCC 402 : (2010) 2 SCC (Cri) 81 : (2010) 1 SCC (L&S) 807
11
(1980) 3 SCC 141 : 1980 SCC (Cri) 649
12
(1969) 1 SCC 110
13
(2012) 6 SCC 430 : (2012) 3 SCC (Civ) 735
14
(1995) 1 SCC 421 : 1995 SCC (Cri) 239
15
(2011) 6 SCC 145 : (2011) 3 SCC (Civ) 241
16
(2011) 7 SCC 639 : (2011) 3 SCC (Civ) 875
17 (2011) 3 SCC 287 : (2011) 1 SCC (L&S) 498
18
(2008) 12 SCC 481
19
(1996) 5 SCC 530 : 1996 SCC (Cri) 1038
20
(1992) 4 SCC 653 : 1993 SCC (Cri) 22
21
1981 Supp SCC 87 : AIR 1982 SC 149

22 (1992) 4 SCC 666 : 1993 SCC (Cri) 17

23 (1992) 4 SCC 305 : 1993 SCC (Cri) 36
24
(1976) 1 SCC 671
25
(2005) 3 SCC 91
26
(2005) 1 SCC 590
27 AIR 1951 SC 41

28 AIR 1967 SC 1335 : 1967 Cri LJ 1204

29 (1981) 2 SCC 436 : 1981 SCC (Cri) 471 : AIR 1981 SC 1621
30 (1978) 2 SCC 479 : 1978 SCC (Cri) 291

31 (1969) 3 SCC 238

32 (2011) 11 SCC 766 : (2011) 3 SCC (Cri) 630
33
(1989) 1 SCC 494
34
(1998) 1 SCC 550 : 1998 SCC (Cri) 450 : AIR 1998 SC 398
35 (2006) 6 SCC 180

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