ADV. BHAVIN MODI (Ghanshyam Upadhyay Versus ..

2020 (0) AIJEL-SC 66457

Equivalent Citation(s):-2020 (16) SCC 811 : 2020 (9) Scale 461

SUPREME COURT OF INDIA

(ALLAHABAD HIGH COURT)

Hon'ble Judges:S.A.Bobde, A.S.Bopanna and V.Ramasubramanian JJ.

(Full Bench)
Ghanshyam Upadhyay Versus State Of Uttar Pradesh

Criminal Miscellaneous Petition No. 70798 of 2020 ;

WRIT PETITION (CRIMINAL) No. 177 of 2020 ; *J.Date :- AUGUST 19, 2020

COMMISSIONS OF ENQUIRY ACT, 1952 Section - 3 , 8B

CONSTITUTION OF INDIA Article - 32

Constitution of India - Art. 32 - Commission of Inquiries Act, 1952 - S. 3, 8B - Public Interest Litigation - constitution of
Inquiry Commission - petitioner is a lawyer - allegation based on news article - allegation of conflict of interest and likely
bias on the part of Chairman, Member of Commission - entire basis for making allegations as contained in miscellaneous
petition is an Article relied on, which is published in newspaper - no other material on record to confirm the truth or
otherwise of statement made in newspaper - newspaper item without any further proof is of no evidentiary value -
Chairman and a Member of Commission had held high Constitutional positions - hence, while making allegations based
only on newspaper report and manner in which averments are made in application is unacceptable - even in a case where
petitioner before Court was a person against whom Commission of Inquiry was constituted, Court applied strict
standards, for testing allegation of personal bias against Inquiry Commission - petitioner is an advocate who practices law
in other State and is in no way connected to incident in question - however, petition filed by him in public interest was
accepted and Commission of Inquiry consisting of persons who had held high position has been constituted - enquiry held
would be in public domain and petitioner has already been granted liberty of participating therein - report of enquiry is
ordered to be filed in petitions which were filed before this Court - therefore, there would be sufficient safeguard to
manner in which inquiry would be held - petitioner has been raising unnecessary apprehensions and repeated applications
are being filed which in fact is hampering process of inquiry - petition/application is without any merit -
petition/application dismissed. (Para [6][8][13][15])

Imp.Para: [ 6 ] [ 8 ] [ 13 ] [ 15 ]

Cases Referred To :

1. Ranjit Thakur Vs. Union Of India & Ors., 1987 4 SCC 611 : 1987 AIJEL_SC 23888

Cases Relied on :

1. K.Vijaya Bhaskar Reddy Vs. Government Of Andhra Pradesh, AIR 1996 AP 62

2. Kushum Lata Vs. Union Of India & Ors., 2006 6 SCC 180 : 2006 AIJEL_SC 37490
3. Ram Krishna Dalmia Vs. Justice S. R. Tendolkar, 1959 0 SCR 279
4. Rohit Pandey Vs. Union Of India, 2005 13 SCC 702 : 2005 AIJEL_SC 38150
5. Sham Kant Vs. State Of Maharashtra, 1992 Supp2 SCC 521 : 1992 AIJEL_SC 25983
6. State Of Karnataka Vs. Union Of India, 1977 4 SCC 608 : 1977 AIJEL_SC 28209

Cited in :

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1. (Referred To) :- Sarabjeet Singh Mokha Vs. District Magistrate, Jabalpur, 2021 AIJEL_SC 67969

JUDGMENT :-

1 The petitioner in this Criminal Miscellaneous Petition/application is the petitioner in W.P (Crl.) No.177/2020. The said writ
petition was filed under Article 32 of the Constitution of India, in the nature of public interest seeking for issue of Writ of
Mandamus and direct the respondent Nos.1 to 3 in the writ petition to initiate action with regard to the destruction of residential
building and other properties of accused-Vikas Dubey and to safeguard the life of the accused. Before the petition was taken up for
consideration certain other developments had occurred, inasmuch as the said Vikas Dubey was killed by the police in an alleged
encounter. Along with the said writ petition, certain other writ petitions which were also filed in public interest seeking for an
appropriate enquiry in that regard were tagged. All the related writ petitions were taken up for consideration together. The State
Government in a reply filed to the said writ petitions, apart from referring to the other aspects of the matter had also indicated that
the Government having taken serious cognizance of all the events, apart from constituting a Special Investigation Team had also
constituted a Commission of Inquiry under the Commission of Inquiries Act, 1951 headed by a former Judge of Allahabad High
Court. In that regard it is to be noted that Shri Justice Shashikant Agrawal, a former Judge had been appointed.

2 In the course of the proceedings before this Court, based on a suggestion made by this Court, the State Government had
undertaken the exercise to expand the composition of the Commission. Accordingly, in addition to the former High Court Judge
who had been appointed the State Government suggested the name of Dr. Justice B.S. Chauhan, a former Judge of this Court to be
the Chairman and Mr. K.L. Gupta, IPS, Former Director General of Police to be a Member. This Court having considered it
appropriate had through the order dated 22.07.2020 accepted the constitution of the Commission of Inquiry in the said manner and
the writ petition was directed to be listed along with the report of the Commission. The petitioners were also granted the liberty of
applying to the Inquiry Commission to be heard in the matter.
3 When this is the position the instant criminal miscellaneous petition is filed by the petitioner seeking that the Judicial
Commission constituted by the State be scrapped and a SIT as sought by the petitioner be constituted by this Court to carry out
investigation on all issues raised by the petitioner. The said prayer is made by the petitioner alleging conflict of interest and likely
bias on the part of the Chairman, Dr. Justice B.S. Chauhan and Shri K.L. Gupta, the Member. The petitioner in that regard has
relied upon an Article published in "The Wire" dated 29.07.2020.
4 We have heard the petitionerinperson and perused the petition papers.
5 At the outset it is necessary to notice that the petitioner herein had filed the applications in I.A. No.68207/2020 and I.A.
No.67940/2020 after the constitution of the Inquiry Commission raising certain objections with regard to Shri K.L. Gupta being
the Member of the Commission since according to the petitioner he had made certain comments in favour of the police in the
interview given to the media. This Court having considered the same and on not finding it objectionable, dismissed the application
through the order dated 28.07.2020 holding the application to be devoid of merits. Despite the same, the very same contentions are
urged in the instant application as well and has also raised an additional contention that the said Shri K.L. Gupta is related to Shri
Mohit Agarwal, the IG of Kanpur Zone. Further, objection is raised to the continuation of Dr. Justice B.S. Chauhan as the
Chairman of the Commission since the news report relied on by the petitioner states that his brother and relative are legislators
from the Bhartiya Janata Party which runs the Government in Uttar Pradesh.

6 As noted, the entire basis for making the allegations as contained in the miscellaneous petition is an Article relied on by the
petitioner said to have been published in the newspaper. There is no other material on record to confirm the truth or otherwise of
the statement made in the newspaper. In our view this Court will have to be very circumspect while accepting such contentions
based only on certain newspaper reports. This Court in a series of decisions has repeatedly held that the newspaper item without
any further proof is of no evidentiary value. The said principle laid down has thereafter been taken note in several public interest
litigations to reject the allegations contained in the petition supported by newspaper report. It would be appropriate to notice the
decision in the case of Kushum Lata vs. Union of India & Ors. (2006) 6 SCC 180 wherein it is observed thus, ".... It is also noticed
that the petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court in
several cases, newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their
authenticity should not normally be entertained. As noted above, such petitions do not provide any basis for verifying the
correctness of statements made and information given in the petition."
7 This Court in the case of Rohit Pandey vs. Union of India (2005) 13 SCC 702 while considering the petition purporting to be in
public interest filed by a Member of the Legal Fraternity had come down heavily on the petitioner since the said petition was
based only on two newspaper reports without further verification.
8 In the above backdrop, in the instant case it is to be noticed that the Chairman and a Member of the Commission had held high
Constitutional positions and while making allegations the petitioner has based his claim only on the newspaper report and the
manner in which the averments are made in the application is unacceptable.
9 In any case, the allegation that the brother of the chairman of the Commission is a legislator belonging to or supporting the party
in power and that the member of the Commission is related to the IG of Police (Kanpur Range) are not sufficient to come to the

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conclusion that it would lead to bias or conflict of interest since there is no indication whatsoever as to the nature of influence such
of those relatives would be able to exert and as to whether they are in a dominant position.
10 It must be remembered that we are dealing here with an Inquiry Commission constituted under the Commissions of Inquiry
Act, whose functions and role are by now well defined. As held by the Constitution Bench in Ram Krishna Dalmia vs. Justice S.
R. Tendolkar, 1959 SCR 279, a commission constituted under the Commissions of Inquiry Act, 1952 is empowered merely to
investigate, record its findings and make its recommendations. These recommendations are not enforceable proprio vigore. The
view taken in Ram Krishna Dalmia, was reinforced by a larger bench in State of Karnataka vs. Union of India, (1977) 4 SCC 608.
In fact, this Court went in Sham Kant vs. State of Maharashtra, 1992 Suppl. (2) SCC 521, to the extent of holding that the findings
of the Inquiry Commission are not binding on the Court, while dealing with an appeal arising out of conviction and sentence of a
police officer. The police officer who was the appellant before this Court in the said case sought to rely upon the findings of the
Inquiry Commission that the victim of custodial violence could have sustained injuries prior to his arrest. But this Court refused to
rely upon the findings of the Inquiry Commission to overturn the conviction of the police officer.
11 In K. Vijaya Bhaskar Reddy vs. Government of Andhra Pradesh, AIR 1996 AP 62, a Division Bench of the Andhra Pradesh
High Court had an occasion to deal with the challenge to the appointment of a oneman Commission of Inquiry under the
Commissions of Inquiry Act, 1952. One of the grounds of challenge was bias on the part of the appointee. After pointing out that
bias by interest which disqualifies a Judge, may fall into two broad classes namely, (i) bias arising out of pecuniary interest, and
(ii) bias arising out of personal interest in the outcome, on account of the Judge's relationship with one of the parties, the Division
Bench of the Andhra Pradesh High Court quoted Massey from his Treatise on Administrative Law to the following effect:
"personal bias arises from a certain relationship equation between the deciding authority and the parties which incline him
unfavourably or otherwise on the side of one of the parties before him".
12 Though a contention was raised in K. Vijaya Bhaskar Reddy that the principle has no application to the proceedings before an
Inquiry Commission, which are basically inquisitorial and not judicial or quasijudicial or adversarial, the Division Bench of the
Andhra Pradesh High Court held that the duty to act fairly and impartially flowed out of the principles of natural justice.
Therefore, the Andhra Pradesh High Court upheld the right of the petitioner therein to raise the plea of bias. However, the Court
held that to sustain a plea of reasonable apprehension of bias, (i) there must be cogent, uncontroverted and undisputed material,
and (ii) the court cannot go by vague, whimsical and capricious suspicion. Applying these principles, the Andhra Pradesh High
Court rejected the challenge made by a former Chief Minister of the state, to the appointment of a retired Judge as oneman
Commission to inquire into certain alleged irregularities committed by him while in office.
13 Thus, even in a case where the petitioner before the Court was a person against whom the Commission of Inquiry was
constituted, the Court applied strict standards, for testing the allegation of personal bias against the Inquiry Commission.
14 In the case on hand, the Petitioner is a lawyer by profession who practices in Mumbai and has come up by way of Public
Interest Litigation. Therefore, the allegations of bias made by him against the members of the Commission merely on the basis of
newspaper reports and nothing more, are liable to be rejected outright.
15 The petitioner has relied on the decision of this Court in the case of Ranjit Thakur vs. Union of India & Ors. (1987) 4 SCC 611
to contend that this Court held that the Likelihood of bias in the mind of the party would be sufficient to complain. The facts in the
said case led to such conclusion inasmuch as the nature of involvement of respondent No.4 in punishing the appellant in that case
and thereafter participating lead to bias and that position was accepted. The facts involved herein are entirely different. The
proceedings herein are not an inter se determination of legal issues between the parties but a factfinding exercise. The petitioner
herein is an advocate who practices law in Mumbai, Maharashtra and is in no way connected to the incident in question which
took place in U.P. However, the petition filed by him in public interest was accepted and the Commission of Inquiry consisting of
persons who had held high position has been constituted. The enquiry held would be in public domain and the petitioner has
already been granted the liberty of participating therein. The report of the enquiry is ordered to be filed in the petitions which were
filed before this Court. Therefore, there would be sufficient safeguard to the manner in which the inquiry would be held. We find
that the petitioner has been raising unnecessary apprehensions and repeated applications are being filed which in fact is hampering
the process of inquiry.
16 For all the aforestated reasons we are of the opinion that the instant petition/application is without any merit and the same is
accordingly dismissed.

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