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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.1406     OF     2012   

Kishore Samrite ... Appellant

Versus

State of U.P. & Ors. ... Respondents

J     U     D     G     M     E     N     T   

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 (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 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 of Rs.50,00,000/- (Fifty  

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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 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 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  

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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.

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 the CBI as  directed hereinabove.  The matter shall  remain 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, Central Bureau of  Investigation, for immediate compliance.”

2. Challenge to the above impugned order, 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  

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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 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.

3. Stands 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 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  

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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 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 4th January, 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.   

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 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.   

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(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 dismissal of the 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 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  

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 contended  

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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 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 not maintainable.  It had, in furtherance to  

the order of the Court, registered a case on 11th March, 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 6th April, 2011.  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 3rd 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 Balram Singh had not supported the version advanced by  

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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 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 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 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 had the right to  

file the habeas corpus petition as next friend of the petitioners  

stated therein.

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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: -

10. 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 Langi  

in District Balaghat, Madhya Pradesh, instituted a Writ Petition in  

the High Court of Judicature at Allahabad being Writ Petition No.  

111/2011 acting as next friend of one Sukanya Devi, Balram  

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 Pradesh.  According to  

the appellant, these three persons were kept in illegal detention  

by the respondent no.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 3rd December, 2006, while on a tour of  

his parliamentary constituency in Amethi, respondent no.6, along  

with six of his friends (two from Italy and four from Britain)  

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committed rape on Sukanya Devi, daughter of Balram Singh.  The  

appellant placed the said news reports on record along with the  

writ petition.   

11. 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 concerned authorities 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 4th January,  

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 12th  December, 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  

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alleging that respondent No.6 would influence any fruitful  

investigation, the appellant prayed for issuance of a writ of  

habeas corpus commanding the opposite party particularly  

respondent No.6 to produce the petitioners before the Court and  

for passing any other appropriate order or direction.

12. Before we refer to the events subsequent to the filing of the  

Writ Petition no.111/2011, it must be noticed that a person  

named Ram Prakash Shukla, a practising advocate 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. 3719/2009 tilted as Ram Prakash  

Shukla  v.  Union of India and Ors.  He also stated that he had  

got information from the internet website about the rape of Ms.  

Sukanya Devi in the evening of 3rd December, 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 not traceable.  On the basis of the  

news report, though an offence under Section 376 of the IPC was  

made out, yet no FIR was being registered by the authorities.  In  

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that writ petition, Ram Prakash Shukla had made the following  

prayers: -

“(i)  Issue a writ, order or direction in the nature  of Mandamus commanding the opposite parties  nos. 1 to 4 to ensure the lodging of the F.I.R. and  to refer it for investigation to independent agency  like S.I.T or C.B.I.

(ii)  Issue a writ, order or direction in the nature  of Habeas Corpus commanding the respondents  nos. 1 to 4 to search and produce the 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 the respondents nos. 5 &  6 (the Human Right 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 cost of the writ petition in favour of  the petitioner.”

13. This writ petition was heard by a Division Bench of the  

Allahabad High Court at Lucknow and was dismissed by a  

detailed judgement dated April 17th, 2009.  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,  

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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 not force, which is  being dismissed.”

14. 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 17th April, 2009.  

It was in the beginning of the year 2011 that the present  

appellant instituted Writ Petition No.111 of 2011 in the Allahabad  

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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 No.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 No.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 cost of Petition to the  petitioners.”

15. This Writ petition was listed before a Single Judge of the  

Allahabad High Court who, vide order dated 1st March, 2011  

directed issuance of notice to respondent No.6 to submit his  

reply.  The matter was to be listed before the Court after service of  

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notice.  During the pendency of this writ petition, respondent No.  

8, Shri Gajendra Pal Singh, again acting as next friend of  

Sukanya Devi, Shri Balram Singh and Smt. Sumitra Devi @  

Mohini Devi, all residents of Ward No.5, near Gurudwara, Town  

Area Amethi District, Chhatrapati Shahu Ji Maharaj Nagar, Uttar  

Pradesh filed Writ Petition No.125 of 2011 on 4th March, 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 No. 8, Shri Gajendra Pal Singh  

claimed to be a neighbour of Shri Balram Singh, father of  

Sukanya and husband of Smt. Sumitra @ 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 the  

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 custody of police as they had  

committed some wrong.  Seeing that right to life and liberty of the  

petitioners was involved, he prayed for the following refliefs :

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“Wherefor it is most respectfully prayed  that this Hon’ble Court may kindly be  pleased to :

a. Issue a writ or writ order or direction in  the nature of habeas corpus commanding  the opposite parties to produce the  petitioner 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.  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 cost of the petition to the  petitioner.  

16. This petition was taken up by a Division Bench of the  

Allahabad High Court and the Court passed the following order  

on 4th March, 2011 :

“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  

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this direction to the Director General of  Police, U.P., shall not be construed to mean  that the detenu is in illegal custody of 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.”

17. The Court directed 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 7th March, 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 3rd  

December, 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 Shukla who was  

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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.  Name of their eldest  

daughter is Kumari Kirti Singh, aged about 21 years.  She had  

passed her B.Sc. 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 3rd  

December, 2006, the DGP has referred to the following statement  

of Balram Singh :

“It has also been stated by Sri Balram Singh  that neither he nor his wife Sushila Singh  nor daughter Kirti Singh has ever made any  allegation either on 03.12.2006 or before or  after that against Shri Rahul Gandhi or  anybody else; nor any writ petition has been  preferred in the Hon’ble High Court making  

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any kind of allegations.  He has never  authorised any Advocate or anybody else to  institute any writ petition.”

18. The Ration Card and Pan Card of Balram Singh was  

produced during 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, Kumari Kirti Singh  

and Smt. Sushila Singh, all three were produced by the Director  

General of Police in Court.   

19. When the Writ Petition No.125 of 2011 came up for hearing  

before the Court on 7th March, 2011, the Division Bench passed  

the detailed order impugned 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 afore-

noticed, Director of CBI was directed to register a case against  

Shri Kishore Samrite and all other persons involved in the plot.  

The Court also imposed cost 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  

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before passing the impugned order and, in fact, the counsel was  

standing in the Court when the order was being dictated.

20. 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 case, Writ  

Petition No.111/11 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 Kumari 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 the Writ Petition No.111 of 11 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 11 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  

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have exercised its appellate jurisdiction.  The cost imposed upon  

the appellant is exorbitant and without any basis.

21. 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.

(1) Whether      there     was     violation     of     Principles     of       Natural    Justice     and     whether     transfer     of     Writ     Petition     No.     111/2011    was     in     accordance     with     law   ?

22. It is contended that the impugned order dated 7th March,  

2011 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.  The Writ Petition No. 111/2011  

had been transferred to the Division Bench without even issuing  

notice to the appellant.  The order dated 4th March, 2011 had not  

directed issuance of notice.  It is only vide order dated 7th March,  

2011 that the Registrar of the High Court was directed to issue  

copy of the order to all the concerned parties 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  

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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 No. 1, State of Uttar  

Pradesh, and other parties is that the counsel for the appellant  

was present and had due notice of hearing of the Writ Petitions  

No. 125/2011 and 111/2011 and as such there was neither any  

violation of the principles of natural justice nor has any prejudice  

been caused to the appellant.

23. 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 granting notice and adequate hearing  

to the parties to the lis.  From the record, i.e. in the orders dated  

4th March, 2011 as well as 7th March, 2011 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 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 concerned parties in both the Writ Petitions bearing  

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nos.125/2011 and 111/2011, 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.

24. From the above narrated facts it is clear that a petition for  

habeas corpus (Writ Petition No. 111/2011) had been filed by the  

present appellant while referring to the news on the website in  

relation to the incident dated 3rd December, 2006 (in paragraphs 3  

and 4) to the effect that since the petitioners, because of their  

illegal detention by private opposite party no.6 are incapacitated  

to file the instant writ petition and also that those petitioners were  

in illegal detention of the private opposite party no.6 and they  

have not been seen since 4th January, 2007.  This writ petition  

was treated as private habeas corpus and was listed before a  

Single Judge of the Allahabad High Court.  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  

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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. 111/2011 was listed before  

the Single Judge of Allahabad 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 senior-

most Judge at the Benches, other than the Principal Bench, is  

normally permitted to exercise powers of the Chief Justice, as may  

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be delegated to the senior most Judge.  In absence of the Chief  

Justice, the senior most Judge would pass directions in regard to  

the roster of 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.  Usefully we can refer to some  

judgments of this Court where such position has been clearly  

stated by this Court. In the case of State of Rajasthan  v.  

Prakash Chand & Ors., (1998) 1 SCC 1, a three-Judge Bench of  

this Court was dealing with the requirement of constitution of  

Benches, issuance of daily cause list and the powers of the Chief  

Justice in terms of the Rajasthan High Court Ordinance, 1949  

read with Article 225 of the Constitution of India.  The Court held  

as under: -

“10. A careful reading of the aforesaid provisions  of the Ordinance and Rule 54 (supra) 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  

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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 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.”

XXXX XXXX XXXX XXXX

24................The correctness of the order of  the Chief Justice could only be tested in  judicial proceedings in a manner known to  

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law.  No Single Judge was competent to find  fault with it.”

25. In view of the above discussion, the Court amongst others,  

stated the following conclusions: -

“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 them by or under the directions of  the Chief Justice.”

26. Similarly, in the case of State of Uttar Pradesh & Ors.  v.  

Neeraj Choubey and Ors. (2010) 10 SCC 320, 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,  

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while passing widespread orders, in paragraph 10 of the judgment  

held as under: -

“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.”

27. 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  

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justice are not violated and there is no occasion of impertinent  

exercise of judicial discretion.

28. 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 senior-most Judge, administratively Incharge of the  

Lucknow Bench, transferring Writ Petition No. 111/2011 for  

hearing from a Single Judge before which it was pending, to the  

Division Bench of that Court.  On basis of the allegations made in  

the Writ Petition No. 111/2011, 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 the Writ Petition No. 125 of 2011 was filed with a  

prayer for transfer of Writ Petition No. 111/2011 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 moto direct transfer of Writ Petition No. 111/2011  

without leave of the Chief Justice of that Court as such action  

would ex facie amount to dealing with matters relating to  

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constitution and roster of 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 concerned High Courts.  

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. 111/2011 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 the Writ  

Petition No. 111 of 2011 by the Division Bench.

Abuse     of     the     process     of     Court   :

29. Now, we shall deal with the question whether both or any of  

the petitioners in Civil Writ Petition Nos. 111/2011 and 125/2011  

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are guilty of suppression of material facts, not approaching the  

Court with clean hands, and thereby abusing the process of the  

Court.  Before we dwell upon the facts and circumstances of the  

case in hand, let us refer to some case laws which would help us  

in dealing with the present situation with greater precision.  The  

cases of abuse of the 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 the 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:

(i) 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 entitled to any relief.   

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(ii)  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.

(iii) The obligation to approach the Court with clean hands is an  

absolute obligation and has repeatedly been reiterated by  

this Court.

(iv)  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 over-shadowed the old ethos of litigative values  

for small gains.

(v)  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.

(vi)  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 insisting on furnishing of security and in  

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cases of serious abuse, the Court would be duty bound to  

impose heavy costs.

(vii)  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.

(vii)  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 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. & Ors. (2010) 2 SCC  114; Amar Singh  v.  Union of India & Ors. (2011) 7 SCC 69  and State of Uttaranchal  v  Balwant Singh Chaufal & Ors.  (2010) 3 SCC 402].

30. 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 the process of the  

Court.  In P.S.R. Sadhanantham  v. Arunachalam & Anr. (1980) 3  

SCC 141, the Court  held:

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“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 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.”

31. 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.

32. With the passage of time, it has been realised that people  

used to feel proud to tell the truth in the Courts, irrespective of  

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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 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 the process of the Court.  One way to curb this  

tendency is to impose realistic or punitive costs.   

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33. 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 abuse of the process of the 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 purpose amounts to abuse of the process of the court.  A  

litigant is bound to make “full and true disclosure of facts”. (Refer :  

Tilokchand H.B. Motichand & Ors.  v.  Munshi & Anr. [1969 (1) SCC  

110]; A. Shanmugam  v.  Ariya Kshatriya Rajakula Vamsathu  

Madalaya Nandhavana Paripalanai Sangam & Anr. [(2012) 6 SCC  

430]; Chandra Shashi  v.  Anil Kumar Verma [(1995) SCC 1 421];  

Abhyudya Sanstha  v.  Union of India & Ors. [(2011) 6 SCC 145];  

State of Madhya Pradesh  v.  Narmada Bachao Andolan & Anr.  

[(2011) 7 SCC 639]; Kalyaneshwari  v.  Union of India & Anr.  

[(2011) 3 SCC 287)].

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34. 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 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 obligation upon the litigant to disclose the true  

facts and approach the court with clean hands.

35. 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 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 the court. {K.D. Sharma  v.  Steel  

Authority of India Ltd. & Ors. [(2008) 12 SCC 481].

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36. 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 (Dr.)  v.  K. Parasaran, (1996) 5  

SCC 530).   

37. 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 the court.   

38. In this regard, first of all we may deal with the case of the  

appellant, Kishore Samrite:

39. Firstly, he filed Writ Petition No. 111/2011 on vague,  

uncertain and incomplete averments.  In fact, he withheld the fact  

that the earlier Writ Petition No. 3719/2009 had been dismissed  

by a Division Bench of the Allahabad High Court as back as on  

17th April, 2009, while he instituted Writ Petition No. 111/2011 in  

the year 2011.  The excuse put forward by the appellant was that  

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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. 3719/2009 must have received great publicity before and at  

the time of the dismissal of the writ petition.

40. Secondly, without verification of any facts, the appellant  

made an irresponsible statement that the petitioners Sukanya  

Devi, Sh. Balram Singh and Smt. Sumitra Devi were in the illegal  

detention of Respondent no.6.  The averments made in the writ  

petition were supported by an affidavit filed in the High Court  

stating that contents of paragraphs 1 and 3 to 15 were true,  

partly true to knowledge and partly based on record while  

paragraphs 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 and identity.  

41. Thirdly, in the Writ Petition in paragraph 10, it is stated that  

the petitioners were last seen on 4th January, 2007 in Amethi and  

the appellant had not seen them thereafter.  The appellant also  

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claims in the same paragraph that the 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 25th  

July, 2012, in paragraph 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, Dist. Balaghat, Madhya  Pradesh, he won the Bye-election and remained  MLA, during 03.11.2007 to 08.12.2008.  True  Copy of the Identity Card is annexed herewith  and marked as ANNEXURE     P-8  .

That the Petitioner, from a young age since  1986 he 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 behest of the leader of  his political party the Petitioner was called  to C-1/135, Pandara Park, New Delhi in  

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2010 to meet the other Senior Leaders,  who were in Delhi as the 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 at 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 afore-noticed.  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 3rd  

December, 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 no.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  

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known to the petitioners.  His acting as the 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 that she and her parents were in illegal  

detention of the respondent no.6.  So by no means, it could not be  

a case of habeas corpus.

44. Now, we would deal with Writ Petition No.125 of 2011  

instituted by Sh. Gajender Pal Singh, respondent No.8 in this  

appeal, being next friend of petitioners Sukanya Devi, Sh. Balram  

Singh and Sh. 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 :

(a)     Sh. Gajender Pal Singh also had no relationship,  

friendship or had not even known the three petitioners.   

(b)    In face of the statements made by the three petitioners  

before the Police and the CBI, stating that they had never  

approached, asked or even expected respondent No.8 to  

act as next friend, he had no authority to act as their next  

friend before the Court and pray for such relief.   

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(c)    In the garb of 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.   

(d) Respondent No.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 No.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.

(e) 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  

paragrah 5 of the writ petition that he was 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  

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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 No.8 has,  

thus, for obvious and with ulterior motive abused the  

process of the 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 No.8) also made irresponsible allegations  

stating that Kishore Samrite, petitioner in Writ Petition  

No.111 of 2011, was a mentally challenged person.

45. From the above specific averments made in the writ  

petitions, it is clear that both these petitioners have approached  

the Court with falsehood, unclean hands and have misled the  

courts by showing urgency and exigencies in relation to an  

incident of 3rd December, 2006 which, in fact, according to the  

three petitioners and the police was false, have thus abused the  

process of the court and misused the judicial process.  They  

maliciously and with ulterior motives encroached upon the  

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valuable time of the Court and wasted public money.  It is a  

settled canon that 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.  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 petitioners have mis-stated facts, withheld true facts  

and even given false and incorrect affidavits.  They well knew 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 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.  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  

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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   

46. 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 No.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 the respondent no.6 while  

according to the respondent no.8 they were detained by the  

authorities.  These contradictory and untrue allegations are the  

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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 3rd December, 2006, involving the respondent  

no.6, had also been raised.

47. 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 the case of  

Simranjit Singh Mann v. Union of India [(1992) 4 SCC 653], this  

Court held that 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, othewise it  

would be unsafe or hazardous to allow a third party to question  

the decision against him.  In the case of S.P. Gupta v. Union of  

India [AIR (1982) SC 149], the Court stated, “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  

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consideration.  The court must not allow its process to be abused  

by politicians and others.”  Dealing with the question of the next  

friend bringing a petition under Article 32 of the Constitution, this  

Court in the case of Karamjeet Singh v. Union of India [(1992) 4  

SCC 666], held as under :

“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  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 Section 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.”

48. 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:

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I) Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305, at  

page 347  :  

“Sarkaria, J. in Jasbhai Motibhai Desai v.  Roshan Kumar expressed his view that the  application of the busybody should be  rejected at the threshold in the following  terms:

‘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’.”

II) R & M Trust v. Koramangala Residents Vigilance Group  (2005) 3 SCC 91]  

“25. In this connection reference may be  made to a recent decision given by this Court  in the case of Dattaraj Nathuji Thaware v.  

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State of Maharashtra in which Hon'ble  Pasayat, J. has also observed as follows:  

‘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’.”

49. 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  

bonafidely 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 bonafidely brings petition in relation to violation of  

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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 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.  In the present  

case, both the appellant and respondent No.8 are total strangers  

to the three mentioned petitioners.  Appellant, in fact, is a  

resident of Madhya Pradesh, belonging to a political party and  

was elected in 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 No.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.   

50. This Court, in the case of Charanjit Lal Chowdhury v. The  

Union of India & Ors. [AIR 1951 SC 41], while discussing the  

distinction between the rights and possibility of invocation of legal  

remedy of a company and a shareholder, expressed the view that  

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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 3rd December, 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  

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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 No.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 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, 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.  It was  

contended on behalf of the appellant as well as respondent No.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 the Writ Petition No.3719 of 2009 was in no way an  

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 the case of Ghulam Sarwar v. Union of  

India [AIR 1967 SC 1335] and Kirti Kumar Chaman Lal Kundaliya  

v. Union of India [AIR 1981 SC 1621].  We do not consider it  

necessary to decide this question as a question of law in the facts  

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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 17th April, 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 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.  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 the case of In Re: Shri Sham Lal  

[(1978) 2 SCC 479].  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.

51. 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 No.8 were certainly an  

abuse of the 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  

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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 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 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.  According to the  

counsel appearing for respondent No.6, it is a case of political  

mudslinging.  He has rightly contended that the websites  

information was nothing but secondary evidence, as stated by this  

Court in Samant N. Balkrishna & Anr. v. V. George Fernandez and  

Ors. [(1969) 3 SCC 238] 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 3rd  

December, 2006.  There is an affidavit by the police and report by  

the CBI to show that this incident never occurred and the three  

petitioners have specifically disputed and denied any such  

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incident or making of any report in relation thereto or even in  

regard to the alleged illegal detention.  Political rivalry can lead to  

such ill-founded litigation.  In the case of Gosu Jayarami Reddy &  

Anr. v. State of Andhra Pradesh [(2011) 11 SCC 766], this Court  

observed that 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.  Appellant as well as respondent No.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  

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.  The term ‘person’  includes not only  

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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 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.  {Ref. Smt. Kiran Bedi v. The Committee of Inquiry &  

Anr. [(1989) 1 SCC 494] and Nilgiris Bar Association v. T.K.  

Mahalingam & Anr. [AIR 1998 SC 398]}.  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 the  

case of Kusum Lata v. Union of India [(2006) 6 SCC 180], this  

Court observed that when there is material to show that a petition  

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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.

52. In light of these legal principles, 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.

53. 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 of the concerned parties in both the writ  

petitions at length.  The transfer of Writ Petition No. 111/2011  

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  

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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 the court  

by the petitioner in Writ Petition No. 125/2011.  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  

entitled them to exceptional rewards.  Certainly, the reputation of  

respondent no.6 has also been damaged, factually and in law.  

Both these petitions are based on falsehood.  The reputation of  

respondent no.6 is damaged and his public image diminished due  

to the undesirable acts of the appellant and respondent no.8.   

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54. 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: -

1.  Writ petition No. 111/2011 was based upon falsehood,  

was abuse of the process of court and was driven by  

malice and political vendetta.   Thus, while dismissing this  

petition, we impose exemplary costs of Rs. 5 lacs upon the  

next friend, costs being payable to respondent no.6.

2. 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.  Thus, this petition is also  

dismissed with exemplary costs of Rs. 5 lakhs for abuse of  

the process of the 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 @ Mohini Devi.

3. On the basis of the affidavit filed by the Director General  

of Police, U.P., statement of the three petitioners in the  

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Writ Petition, CBI’s stand before the Court, its report and  

the contradictory stand taken by the next friend in Writ  

Petition No.111/2011, we, prima facie, are of the view that  

the allegations against the respondent no.6 in regard to  

the alleged incident of rape on 3rd December, 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.

4. The CBI shall continue the investigation in furtherance to  

the direction of the High Court against 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 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 and not later than six months  

from the date of passing of this order.

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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 the 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.

55. The appeal is disposed of in the above terms.

..…………………………J.                (B.S. Chauhan)

..…………………………J.    (Swatanter Kumar)

New Delhi, October 18, 2012

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ITEM NO.1A           COURT NO.12         SECTION II  (For Judgment)

           S U P R E M E   C O U R T   O F   I N D I A

                        RECORD OF PROCEEDINGS

CRIMINAL     APPEAL     NO.     1406     OF     2012   

KISHORE SAMRITE                                  Appellant(s)

                VERSUS

STATE OF U.P. & ORS.                             Respondent(s)

Date: 18/10/2012 This Appeal was called on for pronouncement  

 of Judgment today.

For Petitioner(s) Ms. Kamini Jaiswal,Adv.

For Respondent(s)

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Respondent No. 6 Mr. P.P. Rao, Sr. Adv.

Ms. Mahalakshmi Pavani, Adv.

Mr. G. Balaji, Adv.

CBI Mr. Harin P.Raval, ASG

Mr. Rajiv Nanda, Adv.

Mr. P.K. Dey, Adv.

Mr. B.V. Balram Das,Adv.

    Mr. Arvind Kumar Sharma ,Adv

State of U.P.

Mr. Rakesh Diwedi,Sr.Adv.

Mr. Gaurav Bhatia,AAG, U.P.  

Mr. Gaurav Dhingra,Adv.

Mr. Avnish Pandey,Adv.

Mr. Gautam Talukdar,Adv.

Respondent Nos. 4 & 5

Mr. S.P. Singh, Sr. Adv.

Mr. V.K. Biju, Adv.

Ms. Sadhana Sandhu,Adv.

Ms. Sunita Sharma,Adv.

Mr. B.V. Balramdas, Adv.

             Mrs. Anil Katiyar,Adv.

Respondent No.8 Mr. K.T.S. Tulsi,Sr.Adv.

Mr. Subramonium Prasad,Adv.

Mr. Raj Kamal,Adv.

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Mr. Kuber Boddh,Adv.

Hon'ble Mr. Justice Swatanter Kumar  

pronounced the judgment of the Bench comprising of  

Hon'ble Dr.Justice B.S. Chauhan and His Lordship.

The impugned judgment is modified and the  

appeal is disposed of in terms of the signed Judgment.

(A.S. BISHT)                       (INDU BALA KAPUR)  

COURT MASTER                          COURT MASTER (Signed reportable Judgment is placed on the file)

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