Ghanshyam Upadhyay vs The State Of Uttar Pradesh on 19 August, 2020


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Supreme Court of India

Ghanshyam Upadhyay vs The State Of Uttar Pradesh on 19 August, 2020

Author: Hon’Ble The Justice

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                                                                                   REPORTABLE

                                    IN THE SUPREME COURT OF INDIA

                                    CRIMINAL ORIGINAL JURISDICTION

                                      CRL. M.P. No.70798/2020
                                                 IN
                              WRIT PETITION (CRIMINAL) NO. 177 OF 2020


                         Ghanshyam Upadhyay                                  .… Petitioner(s)

                                                       Versus

                         State of U.P. & Ors.                                …. Respondent(s)


                                                       ORDER

1. The petitioner in this Criminal Miscellaneous

Petition/application is the petitioner in W.P (Crl.)

No.177/2020. The said writ petition was filed under Article

32 of the Constitution of India, in the nature of public

interest seeking for issue of Writ of Mandamus and direct

the respondent Nos.1 to 3 in the writ petition to initiate

action with regard to the destruction of residential building

and other properties of accused –Vikas Dubey and to
Signature Not Verified

Digitally signed by
Sanjay Kumar
Date: 2020.08.19
15:50:38 IST
safeguard the life of the accused. Before the petition was
Reason:

taken up for consideration certain other developments had

WP (Crl) No.177/2020
2

occurred, inasmuch as the said Vikas Dubey was killed by

the police in an alleged encounter. Along with the said writ

petition, certain other writ petitions which were also filed in

public interest seeking for an appropriate enquiry in that

regard were tagged. All the related writ petitions were taken

up for consideration together. The State Government in a

reply filed to the said writ petitions, apart from referring to

the other aspects of the matter had also indicated that the

Government having taken serious cognizance of all the

events, apart from constituting a Special Investigation Team

had also constituted a Commission of Inquiry under the

Commission of Inquiries Act, 1951 headed by a former

Judge of Allahabad High Court. In that regard it is to be

noted that Shri Justice Shashikant Agrawal, a former Judge

had been appointed.

2. In the course of the proceedings before this Court,

based on a suggestion made by this Court, the State

Government had undertaken the exercise to expand the

composition of the Commission. Accordingly, in addition to

the former High Court Judge who had been appointed the

State Government suggested the name of Dr. Justice B.S.

WP (Crl) No.177/2020
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Chauhan, a former Judge of this Court to be the Chairman

and Mr. K.L. Gupta, IPS, Former Director General of Police

to be a Member. This Court having considered it

appropriate had through the order dated 22.07.2020

accepted the constitution of the Commission of Inquiry in

the said manner and the writ petition was directed to be

listed along with the report of the Commission. The

petitioners were also granted the liberty of applying to the

Inquiry Commission to be heard in the matter.

3. When this is the position the instant criminal

miscellaneous petition is filed by the petitioner seeking that

the Judicial Commission constituted by the State be

scrapped and a SIT as sought by the petitioner be

constituted by this Court to carry out investigation on all

issues raised by the petitioner. The said prayer is made by

the petitioner alleging conflict of interest and likely bias on

the part of the Chairman, Dr. Justice B.S. Chauhan and

Shri K.L. Gupta, the Member. The petitioner in that regard

has relied upon an Article published in “The Wire” dated

29.07.2020.

WP (Crl) No.177/2020
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4. We have heard the petitioner­in­person and perused

the petition papers.

5. At the outset it is necessary to notice that the

petitioner herein had filed the applications in I.A.

No.68207/2020 and I.A. No.67940/2020 after the

constitution of the Inquiry Commission raising certain

objections with regard to Shri K.L. Gupta being the Member

of the Commission since according to the petitioner he had

made certain comments in favour of the police in the

interview given to the media. This Court having considered

the same and on not finding it objectionable, dismissed the

application through the order dated 28.07.2020 holding the

application to be devoid of merits. Despite the same, the

very same contentions are urged in the instant application

as well and has also raised an additional contention that the

said Shri K.L. Gupta is related to Shri Mohit Agarwal, the IG

of Kanpur Zone. Further, objection is raised to the

continuation of Dr. Justice B.S. Chauhan as the Chairman

of the Commission since the news report relied on by the

petitioner states that his brother and relative are legislators

WP (Crl) No.177/2020
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from the Bhartiya Janata Party which runs the Government

in Uttar Pradesh.

6. As noted, the entire basis for making the allegations as

contained in the miscellaneous petition is an Article relied

on by the petitioner said to have been published in the

newspaper. There is no other material on record to confirm

the truth or otherwise of the statement made in the

newspaper. In our view this Court will have to be very

circumspect while accepting such contentions based only on

certain newspaper reports. This Court in a series of

decisions has repeatedly held that the newspaper item

without any further proof is of no evidentiary value. The

said principle laid down has thereafter been taken note in

several public interest litigations to reject the allegations

contained in the petition supported by newspaper report. It

would be appropriate to notice the decision in the case of

Kushum Lata vs. Union of India & Ors. (2006) 6 SCC 180

wherein it is observed thus, “…. It is also noticed that the

petitions are based on newspaper reports without any

attempt to verify their authenticity. As observed by this Court

WP (Crl) No.177/2020
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in several cases, newspaper reports do not constitute

evidence. A petition based on unconfirmed news reports,

without verifying their authenticity should not normally be

entertained. As noted above, such petitions do not provide

any basis for verifying the correctness of statements made

and information given in the petition.”

7. This Court in the case of Rohit Pandey vs. Union of

India (2005) 13 SCC 702 while considering the petition

purporting to be in public interest filed by a Member of the

Legal Fraternity had come down heavily on the petitioner

since the said petition was based only on two newspaper

reports without further verification.

8. In the above backdrop, in the instant case it is to be

noticed that the Chairman and a Member of the

Commission had held high Constitutional positions and

while making allegations the petitioner has based his claim

only on the newspaper report and the manner in which the

averments are made in the application is unacceptable.

9. In any case, the allegation that the brother of the

chairman of the Commission is a legislator belonging to or

WP (Crl) No.177/2020
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supporting the party in power and that the member of the

Commission is related to the IG of Police (Kanpur Range) are

not sufficient to come to the conclusion that it would lead to

bias or conflict of interest since there is no indication

whatsoever as to the nature of influence such of those

relatives would be able to exert and as to whether they are

in a dominant position.

10. It must be remembered that we are dealing here with

an Inquiry Commission constituted under the Commissions

of Inquiry Act, whose functions and role are by now well

defined. As held by the Constitution Bench in Ram

Krishna Dalmia vs. Justice S. R. Tendolkar, 1959 SCR

279, a commission constituted under the Commissions of

Inquiry Act, 1952 is empowered merely to investigate, record

its findings and make its recommendations. These

recommendations are not enforceable proprio vigore. The

view taken in Ram Krishna Dalmia, was reinforced by a

larger bench in State of Karnataka vs. Union of India,

(1977) 4 SCC 608. In fact, this Court went in Sham Kant

vs. State of Maharashtra, 1992 Suppl. (2) SCC 521, to the

WP (Crl) No.177/2020
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extent of holding that the findings of the Inquiry

Commission are not binding on the Court, while dealing

with an appeal arising out of conviction and sentence of a

police officer. The police officer who was the appellant before

this Court in the said case sought to rely upon the findings

of the Inquiry Commission that the victim of custodial

violence could have sustained injuries prior to his arrest.

But this Court refused to rely upon the findings of the

Inquiry Commission to overturn the conviction of the police

officer.

11. In K. Vijaya Bhaskar Reddy vs. Government of

Andhra Pradesh, AIR 1996 AP 62, a Division Bench of the

Andhra Pradesh High Court had an occasion to deal with

the challenge to the appointment of a one­man Commission

of Inquiry under the Commissions of Inquiry Act, 1952. One

of the grounds of challenge was bias on the part of the

appointee. After pointing out that bias by interest which

disqualifies a Judge, may fall into two broad classes namely,

(i) bias arising out of pecuniary interest, and (ii) bias arising

out of personal interest in the outcome, on account of the

WP (Crl) No.177/2020
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Judge’s relationship with one of the parties, the Division

Bench of the Andhra Pradesh High Court quoted Massey

from his Treatise on Administrative Law to the following

effect: “personal bias arises from a certain relationship

equation between the deciding authority and the parties

which incline him unfavourably or otherwise on the side of

one of the parties before him”.

12. Though a contention was raised in K. Vijaya Bhaskar

Reddy that the principle has no application to the

proceedings before an Inquiry Commission, which are

basically inquisitorial and not judicial or quasi­judicial or

adversarial, the Division Bench of the Andhra Pradesh High

Court held that the duty to act fairly and impartially flowed

out of the principles of natural justice. Therefore, the

Andhra Pradesh High Court upheld the right of the

petitioner therein to raise the plea of bias. However, the

Court held that to sustain a plea of reasonable

apprehension of bias, (i) there must be cogent,

uncontroverted and undisputed material, and (ii) the court

cannot go by vague, whimsical and capricious suspicion.

WP (Crl) No.177/2020
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Applying these principles, the Andhra Pradesh High Court

rejected the challenge made by a former Chief Minister of

the state, to the appointment of a retired Judge as one­man

Commission to inquire into certain alleged irregularities

committed by him while in office.

13. Thus, even in a case where the petitioner before the

Court was a person against whom the Commission of

Inquiry was constituted, the Court applied strict standards,

for testing the allegation of personal bias against the Inquiry

Commission.

14. In the case on hand, the Petitioner is a lawyer by

profession who practices in Mumbai and has come up by

way of Public Interest Litigation. Therefore, the allegations of

bias made by him against the members of the Commission

merely on the basis of newspaper reports and nothing more,

are liable to be rejected outright.

15. The petitioner has relied on the decision of this Court

in the case of Ranjit Thakur vs. Union of India & Ors.

(1987) 4 SCC 611 to contend that this Court held that the

Likelihood of bias in the mind of the party would be

WP (Crl) No.177/2020
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sufficient to complain. The facts in the said case led to such

conclusion inasmuch as the nature of involvement of

respondent No.4 in punishing the appellant in that case and

thereafter participating lead to bias and that position was

accepted. The facts involved herein are entirely different.

The proceedings herein are not an inter se determination of

legal issues between the parties but a fact­finding exercise.

The petitioner herein is an advocate who practices law in

Mumbai, Maharashtra and is in no way connected to the

incident in question which took place in U.P. However, the

petition filed by him in public interest was accepted and the

Commission of Inquiry consisting of persons who had held

high position has been constituted. The enquiry held would

be in public domain and the petitioner has already been

granted the liberty of participating therein. The report of

the enquiry is ordered to be filed in the petitions which were

filed before this Court. Therefore, there would be sufficient

safeguard to the manner in which the inquiry would be

held. We find that the petitioner has been raising

unnecessary apprehensions and repeated applications are

being filed which in fact is hampering the process of inquiry.

WP (Crl) No.177/2020
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16. For all the aforestated reasons we are of the opinion

that the instant petition/application is without any merit

and the same is accordingly dismissed.

..…………………………..CJI.

(S. A. Bobde)

…..…………………………..J.

(A. S. Bopanna)

..…..………………………….J
(V. Ramasubramanian)
AUGUST 19, 2020
NEW DELHI

WP (Crl) No.177/2020



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