Full Judgment Text
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CASE NO.:
Writ Petition (civil) 42 of 2001
PETITIONER:
N.C. Dhoundial
RESPONDENT:
Union of India & Ors.
DATE OF JUDGMENT: 04/12/2003
BENCH:
P.V. Reddi
JUDGMENT:
JUDGMENT
With
Transfer Petition (Civil) Nos. 180, 261, 283, 293, 850
& 877 of 2001 and Special Leave Petition (Civil) Nos.
8220, 11182, 11186 & 14392 of 2001.
P. Venkatarama Reddi, J.
A search was conducted by the officials of CBI on
25.03.1994 at the residential house of Shri Ashok Kumar
Sinha\027an officer of the Telecom Department (hereinafter
referred to as ’the complainant’) at Ranchi. This was
followed by searches of the houses of his close relations and
contractors at Patna and Ranchi. In between he was
admitted to hospital on two occasions. On discharge from
CCI Hospital at Ranchi on 3.4.1994, the petitioner was
arrested "with a view to interrogate him in custody" and
produced before the Court of Special Judge, CBI, Ranchi
with a prayer to remand him to policy custody for 10 days.
The Special Judge remanded him to judicial custody for a
fortnight with a direction to the Jail Superintendent to get
him medically examined and to submit the report. On
receipt of the report of the Jail Superintendent, he was
remanded to police custody for seven days and there was a
further order to release him on provisional bail for one
month from 13.4.1994. The Court also directed that he
should be admitted in CCI Hospital and interrogated there.
The provisional bail was confirmed later on subject to certain
conditions. The CBI, after obtaining sanction, filed a charge
sheet on 18.8.1998 under Sections 13(2) read with Section
13(1)(e) of the Prevention of Corruption Act for the
possession of assets disproportionate to the known sources
of income.
A day thereafter, i.e. on 19.8.1998, the National
Human Rights Commission (for short ’NHRC’) received a
complaint from Mr. A.K. Sinha alleging illegal detention from
25.3.1994 to 3.4.1994. He also alleged harassment and
torture by the CBI officials including Mr. N.C. Dhoundial,
S.P., CBI (Petitioner in WP (C) 42/2001) . He alleged that a
false case was registered against him for extraneous reasons
on account of the antagonistic attitude of the S.P.\027
Mr. Dhoundial, towards him. The complainant alleged that
the action of the CBI in causing his unlawful detention
during the period 25.3.1994 to 3.4.1994 and the harsh
treatment meted out to him aggravated his disease of
cancer (which was detected later) and a major surgery had
to be performed at Tata Memorial Cancer Hospital, Bombay
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to save his life. Seven officers of CBI were named in the
complaint who, according to the complainant, were directly
or indirectly responsible for his illegal detention. NHRC took
cognizance of the complaint and called for a report from the
Director, CBI. On consideration of the report, the learned
Member of NHRC found that there was no substance in the
complaint and that no action was called for. The learned
Member observed that there was no truth in the allegation
of harassment and denial of proper medical attention. It was
also observed that the complainant never complained to the
Court that he was being ill-treated by the CBI officers. The
learned Member further observed that "there was
considerable force in the stand taken by the CBI that this
complaint has been filed only to demoralize the CBI officers
who are zealously investigating." Proceedings to this effect
were drawn up on 6.11.1998. The complainant then filed a
petition on 21.9.1999 pointing out certain facts which
according to him missed the attention of the NHRC while
taking the decision recorded on 6.11.1998. The petitioner
prayed for reopening the case and to take a fresh decision
after giving him adequate opportunity to present his case.
The learned Chairman of NHRC, by his proceeding
dated 10.3.2000 treated the petition filed by Shri A.K. Sinha
as review petition and having found a prima facie case of
illegal detention of the complainant by the CBI officials
during the period 25.3.1994 to 3.4.1994, thought it fit to
recall the findings recorded in the proceeding dated
6.11.1998 and to further proceed with the enquiry in the
matter. Accordingly, show cause notices were issued to four
CBI officials namely, Shri N.C. Dhoundial, Shri Narayan Jha,
Shri P.K. Panigrahi and Shri B.N. Singh as to why
appropriate recommendation should not be made to the
Competent Authority for initiating disciplinary action and
such other action as may be found expedient. On receipt of
replies from the concerned officials of the CBI, the learned
Chairman, by his proceeding dated 12.6.2000, rejected the
version of the CBI officials, over-ruled the objections raised
by them on points of law and held that the complainant was
in de facto custody of the said officials without authority of
law during the period 25.3.1994 to 3.4.1994 resulting in the
violation of his human rights. The Commission directed the
Director, CBI to initiate appropriate disciplinary action for
the misconduct of the four officials arising out of the illegal
detention of the complainant Shri A.K. Sinha. It was made
clear that the direction would not in any manner affect the
prosecution of Shri Sinha for the offences under Prevention
of Corruption Act. It may be noted that before recording its
findings and giving directions as above, the Commission did
not afford personal hearing or the opportunity to adduce
evidence to the writ petitioner and other officials.
Questioning the said order of NHRC, Shri P.K.
Panigarhi, the then Inspector, CBI filed a Writ Petition\027
CWJC 2454/2000 under Article 226 in the Patna High Court
(Ranchi Bench). The learned Judge dismissed the writ
petition by an order dated 14.8.2000. The learned Judge
observed that all the contentions raised by the writ
petitioner were considered by NHRC and he found no reason
to interfere with the impugned order. However, the learned
Judge made it clear that the order in question was in the
nature of recommendation and disciplinary proceedings as
and when initiated have to be disposed of independently on
the basis of the evidence brought on record. Against this
order in the Writ Petition Shri Panigrahi filed an appeal\027LPA
No. 309/2000 (R). By a speaking order dated 22.1.2001,
the Division Bench admitted the appeal as the appeal raised
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important and debatable questions. Legal questions arising
in the appeal were broadly indicated by the Division Bench.
While ordering notice to NHRC, status-quo with respect to
the appellant was directed to be maintained. Questioning
this interim order passed pending the LPA, the complainant
Shri A.K. Sinha filed SLP (C) No. 14392/2001. NHRC filed
SLP (C) 8220/2001 against the same interim order.
Subsequent to the admission of LPA, two other CBI
officials Shri Bishwanath Singh, the then SI, CBI and Shri
N. Jha, the then Deputy SP, CBI also filed writ petitions
under Article 226 of the Constitution. The learned Single
Judge, following the interim order passed in LPA, granted an
order of status-quo in regard to those writ petitioners also.
It was further ordered that the Writ Applications shall be
heard after the disposal of LPA. Assailing this order, the
complainant A.K. Sinha filed SLP (c) Nos. 11182/2001 and
11186/2001. While so, Shri N.C. Dhoundial, the then SP,
CBI, Ranchi had directly filed Writ Petition (c) No. 42/2001
under Article 32 in this Court questioning the NHRC’s order
dated 12.6.2000. This Court directed issuance of notice on
15.1.2001. Thereafter, a bunch of transfer petitions, three
by A.K. Sinha and three by NHRC came to be filed in this
Court with a prayer to transfer the LPA and Writ Petitions to
the file of this Court and to hear the same along with WP (C)
No. 42 of 2001 filed by N.C. Dhoundial. The ground of
transfer is that similar issues are involved for adjudication in
the LPA/Writ Petitions pending in the High Court and the
Writ Petition pending in this Court.
The SLPs, TPs and the Writ Petition have been grouped
together and posted for final disposal. That is how these 11
matters are before us.
Before proceeding further, it is necessary to make a
brief reference to the stand taken by the officials of CBI on
the factual aspects relating to the alleged detention between
25.3.1994 to 3.4.1994 and the findings recorded by NHRC
on this disputed issue.
The factual account given by the CBI officials is as
follows:
After the search on 25.3.1994 the complainant was
asked to accompany the DSP, CBI to the SP’s office at
Ranchi. During interrogation, the complainant disclosed that
he kept certain papers, pass-books and keys of lockers in a
brief case handed over to one Ranjan Pandey, a contractor
of his department at Patna. He volunteered to accompany
the CBI officials to Patna with a view to assist them in the
investigation. Accordingly, Shri N. Jha, Shri Panigrahi and
Shri B.N. Singh together with the complainant started on the
journey to Patna in the evening. After reaching the outskirts
of Ranchi. Sri Sinha complained of chest pain and wanted to
be examined at a private nursing home named by him.
Accordingly, he was taken to that hospital but the doctor
concerned was not available. Hence, on the request of the
complainant, he was taken to Central Coalfield Hospital at
Ranchi and was admitted in the Hospital. The CBI officials
left the hospital after his family members came to the
hospital to attend on him. On the morning of 26.3.1994, he
was discharged from the hospital after certain tests including
ECG were conducted. The complainant then expressed his
preparedness to go to Patna by air. He bought his own
ticket and accompanied the CBI officers to Patna. On search
of the house of Shri Ranjan Pandey at Patna, the brief case
could not be found. However, certain papers were seized
from his residence. Then the houses of the two close
relatives of the complainant were searched till late night that
day on the basis of the information furnished by him. On
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completion of the searches, the CBI officers stayed in the
Coal India Guest House at Patna. The petitioner volunteered
to stay with them that night on the ostensible ground that
he felt embarrassed to stay with his relatives in the
aftermath of the raids. On 27.3.1994, the flight to Ranchi
was cancelled and there was some uncertainty in the time
schedule of the trains brought for Ranchi on account of Holi
festival the next day. Hence, the officials along with the
complainant took a bus from Patna on the night of March
27th and reached Ranchi in the early morning hours of
March 28th. The complainant was requested to attend the
CBI office at Ranchi at 8.30 a.m. Accordingly, he came to
the CBI office and in the course of questioning he disclosed
that one more brief case with important documents was kept
with another contractor. On a search of the said
contractor’s house, nothing incriminating was found. While
returning to the CBI office, the petitioner again reported that
he was not feeling well and requested that his father-in-law
be informed. Accordingly, his father-in-law came to the CBI
office and both of them left for CCI Hospital. His father-in-
law got him admitted in the hospital and also deposited
money for treatment. On 1.4.1994, even while the
complainant was in hospital, he came to the CBI office with
two brief cases said to have been kept with the two
contractors. Those brief cases were seized in the presence
of witnesses in the CBI office. The brief cases did not contain
any incriminating material. The complainant without
participating in further interrogation went back to the CCI
Hospital. He was discharged from the CCI Hospital on
3.4.1994 at 12 noon and on the request of the IO went to
the CBI office. As he did not cooperate with the
investigating agency and did not even come forward to
produce the documents relating to investments etc.
admitted by him, it was decided to arrest and interrogate
him in custody. That is why he was arrested on 3.4.1994
and produced before the Special Judge, CBI, Ranchi with a
prayer to remand him to police custody.
The CBI officials denied having kept the police personnel
in the hospital either on 25.3.1994 or on the second
occasion. They relied on the entries in the case diary in
support of their contention that he was not arrested till
3.4.1994. Regarding the steps taken by them for providing
medical attendance to the complainant on the first day i.e.
25.3.1994, the stand of CBI officials has been that it was
done on humanitarian considerations, but not because he
was in their custody.
The Commission was not prepared to accept the
version of the CBI officials. The relevant comment made by
the learned Chairman of NHRC to discredit their version is
extracted hereunder:
"The Commission has given its anxious
consideration but it is not inclined to accept the
above explanation because it is unreal to expect
that a wrong doer will make a record of his wrong
actions. Absence of such record in the case
diaries prepared by a noticee cannot be relied on
to disprove the otherwise established fact of the
illegal detention of Shri A.K. Sinha during the
aforesaid period. Had Shri Sinha not been in
actual custody of the CBI officers, there was no
occasion for them to have provided him the
medical aid and attention and to keep him under
constant surveillance. More so, as per the officers’
own showing, they were accompanying the
petitioner from Ranchi to Patna and back for the
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purpose of making recoveries of certain
incriminatory articles. The Commission, therefore,
finds no substance in this objection of the noticee
officers and rejects the same."
Thus the initiative taken by the CBI officers in joining
him in the hospital when he complained of chest pain and
the factum of complainant accompanying the CBI officials to
Patna and coming back with them were relied upon by the
Commission to come to the conclusion that the complainant
was in the actual custody of CBI officers. The Commission
also observed that the complainant was under constant
surveillance. Though it is not elaborated, the Commission
probably meant that he was being watched while he was in
hospital.
It is to be noted that the Commission did not afford
personal hearing to the officials who were put on notice nor
any opportunity of adducing evidence was afforded. The
complaint was decided on the basis of averments in the
review petition and the replies submitted by the officials
concerned. The plea of the officials was tested broadly on
the basis of probabilities and a conclusion was reached that
the officials concerned were guilty of human rights violation.
The three legal objections raised by the CBI officials
were over-ruled by the Commission. Firstly, it was held that
by virtue of Section 13 of the Protection of Human Rights
Act, 1993, the power of review conferred on the civil court
was available to the Commission. As the earlier order was
not a decision on merits but merely an order abstaining
from further enquiry the Commission felt that there was no
bar to reconsider the entire issue in the interest of justice.
The second objection based on Regulation 8(1)(b) of NHRC
(Procedure Regulations) which bars complaints with regard
to matters that are ’subjudice’ was rejected with the
observation that the question of violation of human rights as
a result of alleged unauthorized detention of the complainant
was not subjudice. The other important objection that the
Commission is debarred from enquiring into the matter after
the expiry of one year from the date on which the alleged
illegal detention took place as per the mandate of Section
36(2) was answered by the Commission in the following
words:
"The violation of human rights is a continuing
wrong unless due reparation is made. It gives rise
to recurring cause of action till redressal of the
grievance. The Protection of Human Rights Act,
1993 has been enacted with the object of
providing better protection of Human Rights and it
cannot be assumed that the mere lapse of a
certain period would be sufficient to render the
violation immune from the remedy of redressal of
the grievance."
We cannot endorse the view of the Commission. The
Commission which is an ’unique expert body’ is, no doubt,
entrusted with a very important function of protecting the
human rights, but, it is needless to point out that the
Commission has no unlimited jurisdiction nor does it
exercise plenary powers in derogation of the statutory
limitations. The Commission, which is the creature of
statute, is bound by its provisions. Its duties and functions
are defined and circumscribed by the Act. Of course, as any
other statutory functionary, it undoubtedly has incidental or
ancillary powers to effectively exercise its jurisdiction in
respect of the powers confided to it but the Commission
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should necessarily act within the parameters prescribed by
the Act creating it and the confines of jurisdiction vested in it
by the Act. The Commission is one of the fora which can
redress the grievances arising out of the violations of human
rights. Even if it is not in a position to take up the enquiry
and to afford redressal on account of certain statutory
fetters or handicaps, the aggrieved persons are not without
other remedies. The assumption underlying the observation
in the concluding passage extracted above proceeds on an
incorrect premise that the person wronged by violation of
human rights would be left without remedy if the
Commission does not take up the matter.
Now, let us look at Section 36 of the Protection of
Human Rights Act, which reads thus:
36. Matters not subject to jurisdiction of the
Commission \026 "(1) The Commission shall not
inquire into any matter which is pending before a
State Commission or any other Commission duly
constituted under any law for the time being in
force.
(2) The Commission or the State Commission shall
not inquire into any matter after the expiry of one
year from the date on which the act constituting
violation of human rights is alleged to have been
committed."
Section 36(2) of the Act thus places an embargo against the
Commission enquiring into any matter after expiry of one
year from the date of the alleged act violative of human
rights. The caption or the marginal heading to the Section
indicates that it is a jurisdictional bar. Periods of limitation,
though basically procedural in nature, can also operate as
fetters on jurisdiction in certain situations. If an authority is
needed for this proposition the observations of this Court in
S.S. Gadgil Vs. M/s Lal & Co. [AIR 1975 SC 171] may
be recalled. Construing Section 34 of the Income Tax Act,
1922 the Court observed thus:
"Again the period prescribed by Section 34 for
assessment is not a period of limitation. The
section in terms imposes a fetter upon the power
of the Income-tax Officer to bring to tax escaped
income."\005
The language employed in the marginal heading is another
indicator that it is a jurisdictional limitation. It is a settled
rule of interpretation that the section heading or marginal
note can be relied upon to clear any doubt or ambiguity in
the interpretation of the provision and to discern the
legislative intent (vide Uttam Das vs. S.G.P.C. [(1996)
5 SCC 71] and Bhinka Vs. Charan Singh [AIR 1959 SC
960].
In fact, Section 36(2) does not mince the words and
the language used is clear and categorical. The marginal
note to the Section is being referred to only to consider
whether the bar created by Section 36(2) has a bearing on
the power or jurisdiction of the Commission.
The bar under Section 36(2) is sought to be got over by
the Commission by invoking the theory of continuing wrong
and the recurring cause of action. According to the
Commission, every violation of human right is a continuing
wrong until and unless due reparation is made. We find it
difficult to accept this proposition propounded by the
Commission. The short answer to this view point is that
such a view, if accepted, makes Section 36(2) practically a
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dead letter. Moreover, going by the language employed in
Section 36(2), we do not think that the concept of
continuing wrong could at all be pressed into service in
the instant case. The time limit prescribed is referable to the
alleged ’act’ constituting the violation of human rights. In a
case like illegal detention, the offensive act must be deemed
to have been committed when a person is placed under
detention and it continues so long as the affected person
remains under illegal detention. The commission of offensive
act is complete at a particular point of time and it does not
continue to be so even after the unauthorized detention
ends. It is not in dispute that the complainant was produced
before the Special Judge on 3.4.1994 and remand was
obtained in accordance with the procedure prescribed by
law. The alleged act of unauthorized detention which gives
rise to violation of human rights ceased on 3.4.1994 and it
does not perpetuate thereafter. It is not the effect of illegal
detention which is contemplated by Section 36(2) but it is
the illegal act itself. It would be a contradiction in terms to
say that the arrest or detention beyond 3.4.1994 was in
accordance with law and at the same time the
arrest/detention continued to be wrongful. It cannot,
therefore, be brought under the category of continuing
wrong which is analogous to the expression ’continuing
offence’ in the field of criminal law. It cannot be said that
the alleged wrongful act of detention repeats itself everyday
even after the complainant was produced before the
Magistrate and remand was obtained in accordance with law.
Beyond 3.4.1994, there was no breach of obligation imposed
by law either by means of positive or passive conduct of the
alleged wrong-doers. To characterize it as a continuing
wrong is, therefore, inappropriate. One year period for
taking up the enquiry into the complaint, therefore, comes
to an end by 3.4.1995. Just as in the case of Section 473
Cr.P.C., there is no provision in the Act to extend the period
of limitation of one year. However, in the procedural
Regulations framed by the Commission certain amount of
discretion is reserved to the Commission. Regulation 8(1)(a)
inter alia lays down that ’ordinarily’ a complaint in regard to
events which happened more than one year before the
making of the complaint is not entertainable.
Irrespective of the validity of the prefacing expression
’ordinarily’, let us examine the issue from the point of view
of the regulation itself. The Regulation implies that if
extraordinary circumstances exist, the complaint can be
enquired into even after the expiry of one year. Are there
any extraordinary circumstances made out in this case? We
find none in the impugned order of the Commission. As
already noticed, the petition filed by the complainant was
received by the Commission a day after the charge sheet
was filed though it bears an earlier date. For nearly 4=
years the complainant kept quiet. The explanation given in
the complaint for this long silence was that he was under the
impression that by reporting the matter to NHRC he might
be antagonizing the CBI officials, but, after realizing that
they were not acting fairly and objectively and they
continued to harass him, he thought of filing the petition
before NHRC. The Commission, on its part, did not advert
to this explanation which is really no explanation at all, nor
did it advert to any extraordinary circumstances justifying
interference after a long lapse of time prescribed by Section
36(2). The Commission thus tried to clutch at the
jurisdiction by invoking the theory of continuing wrong
which, as we held earlier, cannot be invoked at all. In this
view of the matter, the direction given by the Commission to
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the Director of CBI, which has an undoubted effect on the
service career of the writ petitioner, is violative of Article 14
of the Constitution.
Before concluding our discussion on this aspect, we
would like to clarify in reiteration of what was said by this
Court in Paramjit Kaur Vs. State of Punjab [(1999) 2
SCC 131] that in a case where the NHRC proceeds to
investigate and inquire into the violation of human rights
pursuant to the directions of this Court under Article 32 of
the Constitution, the bar contained in Section 36(2) will not
apply because in such an event, NHRC does not function
under the provisions of the Act but as an ’expert body’
aiding the Supreme Court in the discharge of its
constitutional power under Article 32.
The question whether Section 13 of the Act empowers
the Commission to exercise the power of review conferred
on the Civil Court and if so, whether the conditions for the
exercise of such power are satisfied, has been debated
before us. In any case, whether the Commission has the
power to reopen the closed complaint and enquire into the
same in the absence of new material coming to light has
also been debated. These questions need be gone into in
view of our conclusion that the Commission exceeded its
jurisdiction in taking up the enquiry in the face of the bar
created by Section 36(2).
In the result, the order of NHRC dated 12.6.2000 is
quashed and the writ petition (civil) No. 42 of 2001 stands
allowed. The S.L.P. Nos. 8220 of 2001, 11182 of 2001,
11186 and 14392 of 2001 filed against the interim orders
granted by the High Court are dismissed. All the Transfer
Petitions are also dismissed with an observation that the
High Court of Jharkhand may dispose of the related Writ
Petitions/LPA pending on its file with expedition in the light
of this judgment. No costs.
\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.J.
(S. RAJENDRA BABU)
\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005..J.
(P. VENKATARAMA REDDI)
New Delhi, \005\005\005\005\005\005\005\005\005\005\005\005\005
\005\005\005\005.J.
December 11, 2003 (H.K. SEMA)
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. 42 of 2001
N.C. Dhoundial \005 Petitioner
Versus
Union of India & Ors. \005 Respondents
With
Transfer Petition (Civil) Nos. 180, 261, 283, 293, 850
& 877 of 2001, Special Leave Petition (Civil) Nos.
8220, 11182, 11186 & 14392 of 2001 and Civil Appeal
No. 3976 of 2002
Dear Brother,
I am sending herewith the draft judgment in the above
cases for your kind perusal and consideration.
With warm regards,
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Hon’ble Mr. Justice S. Rajendra Babu
Hon’ble Mr. Justice H.K. Sema
Under Regulation 8(1) ’ordinarily’ complaints of the nature
enumerated in Clauses (a) to (e) are not entertainable by
the Commissioner. Clause (a) reads as follows:
"in regard to events which happened
more than one year before the making
of the complaints;"
The pre-fixure of the word ’ordinarily’ may
RESDENTIAL OFFICE OF HON’BLE MR. JUSTICE P. VENKATARAMA REDDI
I have been directed by the Hon’ble Judge to inform that
Civil Appeal No. 3976/2002 (Balagopalan K.K. (dead)
through his L.Rs. & Anr. Vs. N.H.R.C., New Delhi and others)
listed on 29th October, 2002 before Court No.4, as item
No.9, may be treated to have been delinked from the group
and directed to be listed for hearing before the Court after
seeking directions from Hon’ble Mr. Justice S. Rajendra
Babu.
G. Sudhakara Rao
P.A.
10-12-2003
Ld. Registrar (Judicial)
Assistant Registrar (Listing) : He is requested to delete the
matter from the Cause List of 11-12-2003.
1