# KISHORE SAMRITE v. STATE OF U.P. & ORS

- **Citation:** [2012] 9 S.C.R. 733
- **Court:** Supreme Court of India
- **Decided:** 2012-10-18
- **Case number:** Criminal Appeal No.1406 of 2012
- **Bench:** Dr. B.S. Chauhan, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kishore-samrite-v-state-of-u-p-ors-28547
- **Pages:** 59

## Headnote

CONSTITUTION OF IND/A, 1950:
A
B
Art.226 - Petitions for a writ of habeas corpus -A/legation C
that a political leader had illegally detained a girl and her
parents - Held: From the specific averments made in both the
writ petitions filed in 2011, it is clear that the so-called next
friends in both the writ petitions have approached the court
with falsehood, unclean hands and have misled the courts by 0
showing urgency and exigencies in relation to an incident of
3.12.2006, which according to all the three petitioners and the
police was false, and 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 - The false a/legations made
E
in the writ petitions have damaged and diminished the public
image of the political leader concerned - The girl and her
parents have been used by the persons who filed the writ
petitions - Their reputation has suffered a serious set back and
they were exposed to inconvenience of being dragged to court
F
- Exemplary...costs of Rs. 5 lacs each is imposed upon the
next friends in both the writ petitions - Costs to be paid to the
affected persons - Order of High Court imposing cost of Rs.
50 lacs on next friend in WP No. 111 of 2011 set aside - CBI
shall continue the investigation in furtherance to the direction
G
of the High Court against the next friend in Writ Petition No.
11112011 and all other persons responsible for the abuse of
the process of court, making false statement in pleadings,
733
H
734
SUPREME COURT REPORTS
[2012) 9 S.C.R.
A filing false affidavits and committing such other offences as
the investigating agency may find during investigation -
Administration of justice - Abuse of process of court -
Administrative law - Natural justice.
Art. 226 - Petition for a writ of habeas corpus - Locus
8 standi - 'Person aggrieved' - Explained.
ADMINISTRATION OF JUSTICE:
Abuse of process of court - Principles enumerated in the
C judgment - Held: Court must ensure that its process is not
abused.
ALLAHABAD HIGH COURT RULES:
Roster of Judges and listing of cases - Division Bench
D of High Court transferring a writ petition on the Board of single
Judge, to its own Board - Held: 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 absence of the Chief Justice, the senior most Judge
E would pass directions in regard to the roster of Judges and
listing of cases - In the instant case, no order was passed by
the Chief Justice of the High Court or even the senior-most
Judge, administratively In-charge of the Lucknow Bench,
transferring Writ Petition No. 11112011 for hearing from a
F Single Judge before which it was pending, to the Division
Bench of that Court - On the basis of the a/legations made in
Writ Petition No. 11112011, it had been listed before Single
Judge - Transfer of Writ Petition No. 11112011 by Division
Bench, suo motu, to its own Board was an order lacking
administrative judicial propriety - Further, it has not been
G specifically recorded nor is it implicitly clear that a notice was
directed to petitioners in WP. No. 11112011 and they were
given opportunity to address the court - Natural justice -
Maxim 'Audi alteram partem'.
H
KISHORE SAMRITE v. ·STATE OF U.P. & ORS.
735
COST:
False and frivolous writ petitions - Imposition of costs and
disbursement of - Maxim jure natvrae aequum est neminem
cum alterius detrimento et injuria fieri locupletiorem -
A
Explained,
B
The appellant, an ex-MLA of Madhya Pradesh filed
writ petition No. 111 of 2011 before the Lucknow Bench
of the Allahabad High Court stating that he came to know
from certain websites to the effect that respondent no. 6,
while on a tour of his Parliamentary constituency in U.P.,
C
along with six others committed rape on a girl in 2006 and
the said girl, her mother and father were kept in illegal
detention by re

## Text

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[2012] 9 S.C.R. 733
KISHORE SAMRITE
v.
STATE OF U.P. & ORS.
(Criminal Appeal No.1406 of 2012)
OCTOBER 18, 2012
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.)
CONSTITUTION OF IND/A, 1950:
A
B
Art.226 - Petitions for a writ of habeas corpus -A/legation C
that a political leader had illegally detained a girl and her
parents - Held: From the specific averments made in both the
writ petitions filed in 2011, it is clear that the so-called next
friends in both the writ petitions have approached the court
with falsehood, unclean hands and have misled the courts by 0
showing urgency and exigencies in relation to an incident of
3.12.2006, which according to all the three petitioners and the
police was false, and 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 - The false a/legations made
E
in the writ petitions have damaged and diminished the public
image of the political leader concerned - The girl and her
parents have been used by the persons who filed the writ
petitions - Their reputation has suffered a serious set back and
they were exposed to inconvenience of being dragged to court
F
- Exemplary...costs of Rs. 5 lacs each is imposed upon the
next friends in both the writ petitions - Costs to be paid to the
affected persons - Order of High Court imposing cost of Rs.
50 lacs on next friend in WP No. 111 of 2011 set aside - CBI
shall continue the investigation in furtherance to the direction
G
of the High Court against the next friend in Writ Petition No.
11112011 and all other persons responsible for the abuse of
the process of court, making false statement in pleadings,
733
H
734
SUPREME COURT REPORTS
[2012) 9 S.C.R.
A filing false affidavits and committing such other offences as
the investigating agency may find during investigation -
Administration of justice - Abuse of process of court -
Administrative law - Natural justice.
Art. 226 - Petition for a writ of habeas corpus - Locus
8 standi - 'Person aggrieved' - Explained.
ADMINISTRATION OF JUSTICE:
Abuse of process of court - Principles enumerated in the
C judgment - Held: Court must ensure that its process is not
abused.
ALLAHABAD HIGH COURT RULES:
Roster of Judges and listing of cases - Division Bench
D of High Court transferring a writ petition on the Board of single
Judge, to its own Board - Held: 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 absence of the Chief Justice, the senior most Judge
E would pass directions in regard to the roster of Judges and
listing of cases - In the instant case, no order was passed by
the Chief Justice of the High Court or even the senior-most
Judge, administratively In-charge of the Lucknow Bench,
transferring Writ Petition No. 11112011 for hearing from a
F Single Judge before which it was pending, to the Division
Bench of that Court - On the basis of the a/legations made in
Writ Petition No. 11112011, it had been listed before Single
Judge - Transfer of Writ Petition No. 11112011 by Division
Bench, suo motu, to its own Board was an order lacking
administrative judicial propriety - Further, it has not been
G specifically recorded nor is it implicitly clear that a notice was
directed to petitioners in WP. No. 11112011 and they were
given opportunity to address the court - Natural justice -
Maxim 'Audi alteram partem'.
H
KISHORE SAMRITE v. ·STATE OF U.P. & ORS.
735
COST:
False and frivolous writ petitions - Imposition of costs and
disbursement of - Maxim jure natvrae aequum est neminem
cum alterius detrimento et injuria fieri locupletiorem -
A
Explained,
B
The appellant, an ex-MLA of Madhya Pradesh filed
writ petition No. 111 of 2011 before the Lucknow Bench
of the Allahabad High Court stating that he came to know
from certain websites to the effect that respondent no. 6,
while on a tour of his Parliamentary constituency in U.P.,
C
along with six others committed rape on a girl in 2006 and
the said girl, her mother and father were kept in illegal
detention by respondent no. 6. Invoking the right to life
and liberty of the three named petitioners, as enshrined
in Art. 21 of the Constitution, it was prayed that a writ of D
habeas corpus be issued commanding the opposite
parties, parti~ularly, respondent no. 6, to produce the
petitioners before the Court. The writ petition was listed
before a single Judge of the High Court. Meanwhile
another Writ Petition No. 125 of 2011 was filed by
E
respondent no. 8, acting as the next friend of the three
petitioners, stating that a false Writ Petition No. 111 of
2011 was filed by the appellant as next friend of the
petitioners, which was publically motivated to harm the
reputation of the opposite party. This petition was listed
before a Division Bench of the High Court, which directed
transfer of W.P. No. 111 of 2011 and tagging of the same
with W.P. No. 125 of 2011, and issued notice to the
Director General of Police to file a personal affidavit.
During investigation, it was revealed that the three named
G
petitioners had shifted to a village in a different district. It
was stated that they never instructed any person to filed
any writ petition on their behalf. The three petitioners
named in the writ petition were produced before the
Court. On 1.3.2011, the Division Bench passed a detailed
F
H
736
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A order in Writ Petition No. 125 of 2011, disposing of Writ
Petition No. 111 of 2011 with a cost of Rs.50,00,000/- and
partly disposing of writ petition No. 125 of 2011. The High
Court directed that out of the said amount, Rs.25,00,000/
- would be paid to the girl, Rs.20,00,000/- to respondent
B no. 6 and Rs 5,00,000/- to the Director General of Police
for producing the alleged detenues within the time frame
as directed in the order. Further, the Dfrector, CBI was
directed to register a case against the appellant and all
other persons involved in the plot. Aggrieved, the next
c friend in W.P. No. 111 of 2011 filed the appeal.
Disposing of the appeal, the Court
HELD:
0 1. Whether transfer of Writ Petition No. 111/2011 was in
accordance with law, and whether there was violation of
Principles of Natural Justice?
1.1. In terms of proviso to Rule 1 of Chapter XXI of
the Allahabad High Court Rules, it is provided that an
E application under Art. 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 Rule shows that habeas corpus against a private
F 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. 111/2011
was listed before the Single Judge of High Court. The
G roster and placing of cases before different Benches of
the High Court is unquestionably the prerogative of the
Chief Justice of that Court. In absence of the Chief
Justice, the senior most Judge would pass directions in
regard to the roster of Judges and listing of cases.
H Primarily, it is the exclusive prerogative of the Chief
KISHORE SAMRITE v. STATE OF U.P. & ORS.
737
Justice and does not admit any ambiguity or doubt in this
A
regard. [para ·24] [765-B-H]
State of Rajasthan v. Prakash Chand & Ors., 1997 (6)
Suppl. SCR 1 = (1998) 1 SCC 1; State of Uttar Pradesh &
Ors. v. Neeraj Chou bey and Ors. 2010 (11) SCR 542 = (2010)
10 sec 320
B
1.2. In the instant case, there is no dispute to the fact
that no order was passed by the Chief Justice of the High
Court or even the senior-most Judge, administratively
lncharge of the Lucknow Bench, transferring Writ Petition
C
No. 11112011 for hearing from a Single Judge before
which it was pending, to the Division Bench of that Court.
On the basis of the allegations made in Writ Petition No.
111/2011, that matter had been listed before the Single
Judge. It does not appear to be apt exercise of jurisdiction o
by the Division Bench to suo motu direct transfer of Writ
Petition No. 111/2011 without leave of the Chief Justice,
as such action would ex facie amount to dealing with
matters relating to constitution and roster of Benches.
[para 28] [769-B-E]
E
1.3. 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.
F
In the instant case, suffices it to note that transfer of Writ G
Petition No. 111/2011 by the Division Bench to its own
Board was an order lacking administrative judicial
propriety. [para 28] [769-F-H; 770-A]
H
738
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A
1.4. Compliance with the principle of audi alteram
partem and other allied principles of natural· justice is the
basic requirement of rule of law. In fact, it is the essence
of judicial and quasi-judicial functioning and, particularly,
the courts would not finally dispose of a matter without
8 granting notice and adequate hearing to the parties to the
lis. From the record, i.e. in the orders dated 4.3.2011 as
well as 7.3.2011 passed by the High Court, it has not been
specifically recorded nor is it implicitly clear that a notice
was directed to the petitioners in Writ Petition No.111/
2011 and they were given opportunity to address the
C court. Lack of clarity in this behalf does raise a doubt in
the mind of the court that the appellant did ~ot get a fair
opportunity to put forward his case before the Division
Bench. [para 23] (764-B-E]
·
D Abuse of the process of Court :
2.1. The cases of abuse of the process of court and
such allied matters have been arising before the courts
consistently. Some of the principles, emerging from
E various decisions are enumerated as follows:
(i)
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
F
litigant has broken such faith, the discretion of
the court cannot be exercised in favour of
such a litigant. (para 29(ii)] [770-D, G-H; 771-A]
G
H
(ii) The obligation to approach the court with
clean hands is an absolute obligation and has
repeatedly been reiterated by this court. [para
29(iii)] [771-B]
(iii)
A litigant who attempts to pollute the stream of
justice or who touches the pure fountain of
KISHORE SAMRITE v. STATE OF U.P. & ORS.
739
justice with tainted hands is not entitled to any
A
relief, interim or final. [para 29(v)] [771-D]
(iv)
The court must ensure that its process is not
abused and in order to prevent abuse of the
process the court, it would be justified even in
8
insisting on furnishing of security and in cases
(v)
(vi)
of serious abuse, the court would be duty
bound to impose heavy costs. [para 29(vi)]
[771-E]
Wherever a public interest is invoked, the court C
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. [para
29(vii)] [771-F]
D
The court, especially the Supreme Court, has
to maintain strictest vigilance over the abuse
of the process of court and ordinarily
meddlesome bystanders should not be
E
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
29(viii)] [771-G-H; 772-A]
F
2.2. 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 the process of the court. G
One way to curb this tendency is to impose realistic or
punitive costs. The legal maxim jure naturae aequum est
neminem cum a/terius detrimento et injuria fieri
/ocup/etiorem, means that it is a law of nature that one
should not be enriched by the loss or injury to another,
H
740
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A is the percept for Courts. Wide jurisdiction of the court
should not become a source of abuse of the 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
B obligation upon the litigant to disclose the true facts and
approach the court with clean hands. [para 32 and 34]
[773-F; 774-E-G]
P.S.R. Sadhanantham v. Arunachalam & Anr. (1980) 3
C SCC 141; K.D. Sharma v. Steel Authority of India Ltd. & Ors.
2008 (10) SCR 454 = (2008) 12 SCC 481; and Buddhi Kata
Subbarao (Dr.) v. K. Parasaran, 1996 (4) Suppl. SCR 574 =
(1996) 5 sec 530 - relied on
Da/ip Singh v. State of UP. & Ors. 2009 (16) SCR 111
D = (2010) 2 SCC 114; Amar Singh v. Union of India & Ors.
2011 (6) SCR 403 = (2011) 7 sec 69 and State of
Uttaranchal v Ba/want Singh Chaufal & Ors. 2010 (1) SCR
678 = (2010) 3 SCC 402; Tilokchand H.B. Motichand & Ors.
v. Munshi & Anr. 1969 (1) SCC 110; A. Shanmugam v. Ariya
E Kshatriya Rajakula Vamsathu Mada/aya Nandhavana
Paripalanai Sangam & Anr. (2012) 6 SCC 430; Chandra
Shashi v. Anil Kumar Verma 1994 (5) Suppl. SCR 465 =
(1995) SCC 1 421; Abhyudya Sanstha v. Union of India &
Ors. 2011 (7) SCR .611 = (2011) 6 SCC 145; State of Madhya
F Pradesh v. Narmada Bachao Ando/an & Anr. 2011 (6) SCR
443 = (2011) 7 SCC 639; and Kalyaneshwari v. Union of India
& Anr. 2011 (1) SCR 894 = (2011) 3 SCC 287) - referred to.
2.3. In the instant case, from the specific averments
made in both the writ petitions i.e. W .P. No. 111 of 2011
G and W.P. 125 of 2011, it is clear that 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 the court. They have misled the courts by showing
H urgency and exigencies in relation to an incident of
KISHORE SAMRITE v. STATE OF U.P. & ORS.
741
3.12.2006 which, in fact, according to the three petitioners
A
and the police was false. They maliciously and with
ulterior motives encroached upon the valuable time of the
court and wasted public money. The privilege of easy
access to justice has been abused by these persons by
filing frivolous and misconceived petitions. On the basis
B
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
persons have mis-stated the facts, withheld true facts and c
even gave false and incorrect affidavits. They knew well
that 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 was directed to conduct investigation. Truth being
0
the basis of justice delivery system, it was important for
this Court to reach at the truth, which it has been able to
reach at with the able assistance of all the counsel. [para
37 and 45] [775-D; 779-G-H; 780-A-D]
2.4. The alleged incident which, according to the
E
petitioners, police and the CBI, never happened 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 the court has been
abused by unscrupulous litigants just to attain publicity
F
and adversely affect the reputation of another politician,
respondent No.6. One of the obvious reasons which can
reasonably be inferred from the peculiar facts and
circumstances of the case is the political rivalry. It is said
to be a case of political mudslinging. It has been rightly
G
pointed out that the websites information was nothing
but secondary evidence, 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 show even the remotest possibility of happening
H
742
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A of the alleged rape incident on 3.12.2006. The
methodology adopted by the next friends in the writ
petitions before the High Court was opposed to political
values and administration of justice. If such petitions are
not properly regulated and abuse averted, it becomes a
B tool in unscrupulous hands to release vendetta and
wreak vengeance as well. [para 51) [786-G-H; 787-A-G;
788-E-F)
Samant N. Balkrishna & Anr. v. V. George Fernandez
C and Ors. 1969 (3) SCR 603 = (1969) 3 sec 238 - relied on
Gosu Jayarami Reddy & Anr. v. State of Andhra Pradesh
2011 (9) SCR 503 = (2011) 11 SCC 766; Smt. Kiran Bedi v.
The Committee of Inquiry & Anr. 1989 (1) SCR 20 = (1989)
1 SCC 494; Nilgiris Bar Association v. T.K. Maha/ingam &
D Anr. 1997 (6) Suppl. SCR 246 =AIR 1998 SC 398; Kusum
Lata v. Union of India 2006 (3) Suppl. SCR 462 = (2006) 6
sec 180 - referred to.
2.5. This Court holds that the cases of both the
E petitioners suffered from falsehood, were misconceived
and were patent misuse of judicial process. Abuse of the
process of the 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.
F This Court cannot permit the judicial process to become
an instrument of oppression or abuse or to subvert
justice by unscrupulous litigants like the appellant and
respondent no. 8 in the instant case. [para 45) [780-D-F]
G
3.1. The question of locus standi would normally be
a question of fact and law both. 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
H directly affected but has some personal stake in the
KISHORE SAMRITE v. STATE OF U.P. & ORS.
743
outcome of a petition. In such cases, he may move the
A
court as a guardian or next friend for and on behalf of the
disabled aggrieved party. Normally, a total stranger would
B
not act as next friend. There could be cases where a
public spirited person bonafidely 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 c
bonafides, 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. [para 46, 47 and
49) [780-G; 781-D-E; 784-B-D]
Simranjit Singh Mann v. Union of India (1992) 4 SCC
653; S.P. Gupta v. Union of India AIR 1982 SCR 365 = (1982)
D
SC 149; Karamjeet Singh v. Union of India 1992 (1) Suppl.
SCR 898 = (1992) 4 SCC 666; Janata Dal v. H.S. Chowdhary,
1992 (1) Suppl. SCR 226 = (1992) 4 SCC 305; R & M Trust
E
v. Koramangala Residents Vigilance Group 2005 (1) SCR
582 = (2005) 3 sec 91 - referred to.
3.2. In the instant case, both the appellant and
respondent No.8 are total strangers to the three
F
mentioned petitioners. The appellant, in fact, is a resident
of Madhya Pradesh, belonging to a political party and was
elected an MLA in Madhya Pradesh. He has no roots in
Amethi and, in fact, he was a stranger to that place. The
appellant as well as respondent No.8 did not even know
G
that the persons on whose behalf they have acted as
next friend had shifted their residence in the year 2010
to another district. They have made false averments in the
petition and have withheld true facts from the court. The
issue could be decided with reference to the given facts
H
744
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A and not in isolation. They filed their respective writ
petitions before the 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
B the two writ petitions by the respective petitioners. 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 rio.6, had also been raised. [para 46
and 49] [780-H; 781-A-C; 784-0-F]
c
Charanjit Lal Chowdhury v. The Union of India & Ors.
1950 SCR 869 =AIR 1951 SC 41 - referred to
3.3. It is not a case of a mere third person moving the
court simpliciter on behalf of persons under alleged
D 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, the petitioners
in the writ petitions have categorically stated that they
E made no complaint of the alleged incident of 3.12.2006
and never authorised, requested or approached either of
the appellant or respondent no. 8 to move the court for
redressal of any grievance. The question of filing habeas
corpus petitions on their behalf would not arise because
F 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 No.6 or the
Police authorities. In the face of this definite stand taken
by these persons, the question of locus standi has to be
G answered against both the appellant and respondent no.
8. In fact, it is not only abuse of the process of the court
but also is a case of access to justice unauthorisedly and
illegally. Their whole modus operandi would be
unacceptable in law. Thus, this Court holds on the facts
H of the instant case that both the appellant and respondent
KISHORE SAMRITE v. STATE OF U.P. & ORS.
745
no. 8 had no locus standi to approach the High Court in
A
the manner and method in which they did. (ppra 50) (785B-G)
4. As regards the plea that a petition for habeas
corpus is not struck by the rule of res judicata or 8
constructive res judicata, suffice it to note that the
judgment of the Allahabad High Court dated 17.4.2009 in
Civil Writ Petition 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
C
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 50) [785-G; 786-B-D]
Ghulam Sarwar v. Union of India 1967 SCR 271 =AIR
1967 SC 1335 and Kirli Kumar Chaman Lal Kundaliya v.
Union of India AIR 1981 SC 1621; Re: Shri Sham Lal 1978
(2) SCR 581 = (1978) 2 sec 479 cited
5.1. 'Reputation' is an element of personal security
and is protected by Constitution equally with the right to
enjoyment of life, liberty and property. In light of the legal
principles, the. appellant and, in fact, to a great extent
even respondent No.8 have made an attempt to hurt the
reputation and image of respondent no.6 by stating
incorrect facts, that too, by abusing the process of court.
[para 51-52) [788-B-C; G]
5.2. However, imposition of such heavy costs upon
D
E
F
the petitioner in W.P. No. 111 of 2011 as was imposed by
G
the High Court, 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, the manner in which the costs imposed
H
746
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A were ordered to be disbursed to the different parties can
also not be approved. 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
s Court, who, 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 the court in Writ Petition No. 125/2011. They
had made no complaint to any person and thus, the
C question of their illegal detention and consequential
release would not arise. These three petitioners have
been used by both the appellant and respondent no. 8
and it is, in fact, they are the ones whose reputation has
suffered a serious setback and were exposec1 to
0 inconvenience of being dragged to courts for no fault of
their own. Certainly, the reputation of respondent no.6
has also been damaged, factually and in law. [para 53]
[789-8-F]
5.3. Therefore, the order under appeal cannot be
E sustained in its entirety and is modified as follows:
F
G
H
(i)
Writ petition No. 111 /2011 was based upon
falsehood, was abuse of the process of court
and was driven by malice and political
vendetta. The exemplary costs of Rs. 5 lacs is
imposed upon the next friend, costs being
payable to respondent no.6.
(ii)
The next friend in Writ Petition No. 125/2011
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. Costs of Rs. 5 lakhs is imposed
upon next friend for abuse of the process of
the court and/or for such other offences that
KISHORE SAMRITE v. STATE OF U.P. & ORS.
747
they are found to have been committed, which
A
shall be payable to the three petitioners
produced before the High Court.
(iii)
On the basis of the affidavit filed by the
Director General of Police, U.P., statement of 8
the three petitioners in the writ petition, CBl's
stand before the Court, its report and the
contradictory stand taken by the next friend in
Writ Petition No.111/2011, this Court is, prima
facie, of the view that the allegations against C
respondent no.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
evide.nce before the Court to validly form an
opinion to the contrary. In fact, as per the
D
petitioners (allegedly detained persons), they
were never detained by any person at any
point of time.
(iv) The CBI shall continue the investigation in
E
furtherance of the direction of the High Court
against the petitioner in Writ Petition No. 111 /
2011 and all other persons responsible for the
abuse of the process of court, making false
statement in pleadings, filing false affidavits
F
and committing such other offences as the
investigating agency may find during
investigation. The CBI shall submit its report
to the court of competent jurisdiction as
expeditiously as possible. [para 54) [789-G-H;
G
790-A-H; 791-A-B]
Case Law Reference:
1997 (6) Suppl. SCR 1
2010 (11) SCR 542
relied on
relied on
para 24
para 26
H
748
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A
2009 (16) SCR 111
relied on
para 29
2011 (6) SCR 403
relied on
para 29
2010 (1) SCR 678
relied on
para 29
B
(1980) 3 sec 141
relied on
para 30
1969 (1) sec 110
referred to
para 33
2012 (6) sec 430
referred to
para 33
1994 (5) Suppl. SCR 465
referred to
para 33
c
2011 (7) SCR 611
referred to
para 33
2011 (6) SCR 443
referred to
para 33
2011 (1) SCR 894
referred to
para 33
D
2008 (10) SCR 454
relied on
para 35
1996 (4) Suppl. SCR 574
relied on
para 36
(1992) 4 sec 653
referred to
para 47
E
1982 SCR 365
referred to
para 47
1992 (1) Suppl. SCR 898
referred to
para 47
1992 (1) Suppl. SCR 226
referred to
para 48
F
2005 (1) SCR 582
referred to
para 47
1950 SCR 869
referred to
para 50
1978 (2) SCR 581
cited
para 50
1967 SCR 271
cited
para 50
G
AIR 1981 SC 1621
cited
para 50
1969 (3) SCR 603
relied on
para 51
2011 (9) SCR 503
referred to
para 51
H
1989 (1) SCR 20
referred to
para 51
KISHORE SAMRITE v. STATE OF U.P. & ORS.
749
1997 (6) Suppl. SCR 246
referred to
2006 (3) Suppl. SCR 462
referred to
para 51
para 51
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1406 of 2012.
From the Judgment & Order dated 07.03.2011 of the High
Court of Allahabad at Lucknow in WP No. 111of 2011.
Harin P. Raval, ASG, P.P. Rao, Rakesh Diwedi, S.P.
A
B
Singh, K.T.S .. Tulsi, Gaurav Bhatia, AAG, Kamini Jaiswal,
Asbhimanue Shrestha, S.M. Royekwar, R.K. Shukla, Ajay
C
Singh, Kr. Prashant, Mahalakshmi Pavani, G. Balaji, Rajiv
Nanda, P.K. Dey, B.V. Bairam Das, Arvind Kumar, Sharma,
Mohd. Fuzail Khan, Gaurav Dhingra, V.K. Biju, Sadhana
Sandhu, Sunit Sharma, Anil Katiyar, Subramonium Prasad, Raj
Kamal, Kuber Boddh for the Appearing Parties.
D
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. Challenge in the present
appeal is to the order dated 7th March, 2011 passed by a
Division Bench of the High Court of Judicature at Allahabad
E
(Lucknow Bench). The operative part of the order reads as
under:
"In view of all the aforesaid and particularly for the reasons
that the writ petition No.111 (H/C) of 2011 was filed on the
F
instructions of Kishor 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
Km. Kirti Singh, we dismiss this writ petition with a cost
G
of Rs.50,00,000/- (Fifty lacs). Out of the cost amount,
Rs.25,00,000/- (Twenty five lacs) shall be paid to Km. Kirti
Singh and Rs.20,00,000/- (Twenty lacs) to Shri Rahul
Gandhi, opposite part no.6. The cost amount shall
bedeposited within a period of one month with the
H
750
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A
Registrar of this Court, failing which the Registrar shall
take necessary action for recovery of the amount as land
revenue.
B
c
D
E
F
G
H
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 thepromptness and sincerity shown, in themidst
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
lacs) 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 Kishor 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 the CBI, their display in India
shall remain banned. The Director, CBI, shall ensure
compliance of this order forthwith. He shall also prepare
a list of such other websites which are involved in display
of scandalous informations about the functionaries holding
high public offices and submit a report in respect thereof
on the next date of hearing.
KISHORE SAMRITE v. STATE OF U.P. & ORS.
751
[SWATANTER-KUMAR, J.]
Thus, writ petition No.125 (H/C) of 2011 is partly
A
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
the CBI as directed hereinabove. The matter shall remain
B
part heard.
List the matter on 11.04.2011 for further hearing.
The Registrar of this Court shall issue copy of this
order to all the concerned parties including the Director,
C
Central Bureau of Investigation, for immediate
compliance."
2. Challenge to the above impugned order, inter alia, but
primarily is on the following grounds :
D
(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
E
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
F
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 cost and registration
of a case against the appellant by the CBI are
uncalled for and in any case are unjust and
disproportionate as per the known canons of law.
G
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[2012] 9 S.C.R.
A
3. Stands on merits is that Writ Petition Ne.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
B production of the corpus. It did not satisfy the pre-requisites 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
C writ petition for habeas corpus was maintainable in view of the
right to life and liberty 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 th January, 2007
D 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.
E
5. To the contra, it is contended on behalf of the State of
Uttar Pradesh that :
(i)
The Writ Petition No.111 of 2011 was an abuse of
the process of Court. The appellant had not
F
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
G
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
H
KISHORE SAMRITE v. STATE OF U.P. & ORS.
753
[SWATANTER KUMAR, J.]
stated petitioners (in Writ Petition No.111 of 2011)
A
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 dismissal of the Writ P_etition No.3719
B
of 2009 by the same High Court and its nonmentioning by the petitioner in Writ Petition No.111
of 2011, besides being suppressioi:i of material
facts was hit by the principles of res judicata.
(vi)
Writ Petition No.111 of 2011 had been rightly
C
transferred by the Division Bench and its dismissal
and imposition of costs was in proper exercise of
jurisdiction.
(vii)
Lastly, it is contended that the next friend had given o
fictitious addresses of the petitioners which are
different than the ones given in the present appeal.
6. On behalf of Respondent No.6, Shri Rahul Gandhi, it
was contended that Writ Petition No.111 of 2011 is an. abuse
of the process of Court and, in fact, is a motivated petition
primarily based on 'political mudslinging'. While supporting the
stand of Respondent No. 1, the State of Uttar Pradesh, it is also
contendee:l that the appellant, Shri Kishore Samrite, was a total
stranger, had no knowledge of the facts ar:id, 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 No.6 out of
ulterior motives and political vendetta.
7. According to Respondent No. 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, petition
for habeas corpus was nol maintainable. It had, in furtherance
to the order of the Court, registered a case on 11th March,
E
F
G
H
754
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A 2011 being RC No.219-2011-(E)2002 under Sections 120B,
181, 191, 211, 469, 499 and 500 of the Indian Penal Code,
1860 (IPC). The CBI could not complete the investigation
because of the order of stay passed by this Court on 6 th April,
2011. From the limited investigation which was conducted
B during that period and from the statement of Shri Bairam Singh
and other witnesses, it came to light that nothing had happened
on 3 rd December, 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 Bairam Singh had not
c 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 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
0 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 the CBI that the
appellant had made no enquiry, had no personal knowledge
E and that the litigation had been funded from sources other than
appellant's own sources.
8. Lastly, Respondent No.8 in this appeal, Shri Gajendra
Pal Singh, who was the petitioner in Writ Petition No.125 of
F 2011, has stated that he had filed that petition bona fidely 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
No.8, Writ Petition No.125 of 2011 was necessitated and he
G had the right to file the habeas corpus petition as next friend of
the petitioners stated therein.
H
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
KISHORE SAMRITE v. STATE OF U.P. & ORS.
[SWATANTER KUMAR, J.]
before this Court can usefully be noticed as follows: -
755
10. The appellant, Shri Kishore Sam rite, an ex-member of
legislative assembly of Madhya Pradesh, elected on the ticket
A
of Samajwadi Party from the legislative constituency of Tehsil
Langi in District Balaghat, Madhya Pradesh, instituted a Writ
B
Petition in the High Court of Judicature at Allahabad being Writ
Petition No. 111 /2011 acting as next friend of one Sukanya
Devi, Bairam Singh and Sumrita Devi. Address of all these
three persons was given as 23-12, Medical Chowk, Sanjay
Gandhi Marg, Chhatrapati Shahu Ji Mahraj Nagar, Uttar C
Pradesh.