Dinesh Maheshwari, J.@mdashThe petitioner, said to be an Advocate practicing law since the year 1996, has filed this petition ostensibly as a Public Interest Litigation (''P.I.L.'') with the suggestion that he was concerned with arbitrary transferring of criminal investigation from one agency to another and from one place to another at the behest of interested persons; and that this manoeuvring was taking place in the absence of guidelines in respect of such transfer of cases/investigation. The petitioner has prayed for a mandamus commanding the respondents to frame regulations governing investigations by the Crime Branch, Criminal Investigation Department (for brevity ''CBCID'') and other investigating agencies who are directly under the control of the Principal Secretary (Home), State of U.P.
2. This petition, as filed on 19.11.2015, came up at the initial stage before a Co-ordinate Bench on 23.11.2015. During the course of hearing, it was pointed out by the learned Additional Advocate General appearing for the respondents that the petitioner had previously filed a petition at Allahabad, being P.I.L. No. 11467 of 2015, that was dismissed on 19.05.2015; and it was submitted that these material facts were not disclosed in the present petition.
3. Having regard to the submissions so made, the Court put the petitioner to notice as to why the proceedings be not initiated for concealing the material facts, particularly when the prayer has essentially been made for the same cause in the name of public interest. It was also indicated that in the event it was found that the petitioner has indulged into such a practice, the Court would proceed to take appropriate action against him. The petitioner was directed to file his affidavit and also to remain present before the Court. The order dated 23.11.2015 reads as under:-
"Heard Sri K.K. Srivastava, learned counsel holding brief of Sri Amir Naqvi, learned counsel for the petitioner.
This writ petition has been filed praying for a mandamus directing the respondents to frame the regulations governing investigation by the Crime Branch C.I.D. and such agencies who are placed under the direct control of respondent No. 1.
The petitioner admittedly is a practicing advocate at Kanpur. It has been pointed out by the learned Additional Advocate General that the petitioner had filed a writ petition at Allahabad being P.I.L. No. 11467 that has been dismissed on 19.05.2015. This fact does not appear to have been disclosed in the present writ petition.
We put the petitioner to notice as to why proceedings be not initiated for having concealed this material fact before this Court when the prayer made is in effect for the same cause in the name of public interest.
In the event it is found that the petitioner has indulged into such a practice, the Court shall proceed to take appropriate action against him.
The petitioner shall, therefore, be also present when the matter is taken up on 02.12.2015 and file his affidavit giving explanation to that effect.
List accordingly."
4. On the matter being taken up today, Sri Anil Kishore Pandey, the petitioner, appeared before the Court with his counsel Mr. Mohammed Amir Naqvi and filed an affidavit asserting boldly that the statement made on the part of the State Counsel was misleading; and that the P.I.L. petition filed before the Court at Allahabad and the present one were totally different with different nature prayers. The petitioner also referred to the fact that another P.I.L. petition bearing No. 60229 of 2015, Anoop Baranwal and others vs. State of U.P. was pending before this Court at Allahabad. The relevant contents of the affidavit so filed by the petitioner could be taken note of as under:-
"6. That it is admitted that the deponent (petitioner) has filed a PIL No. 11467 of 2015 before the Hon''ble Allahabad High Court which was dismissed on 19.5.2015 but it is vehemently denied that the same was filed on the same cause of action as the prayer made in the (petition) PIL No. 11467 of 2015 filed before the Hon''ble Allahabad High Court is different and has no relation with the present writ petition. The copy of petition No. 11467 of 2015 is annexed herewith as Annexure A-1.
7. That in the present petition, the deponent (petitioner) is praying for framing appropriate rules and regulations, governing investigation by the crime branch, criminal investigation department and other such investigating agencies who are under the direct control of respondent No. 1.
8. That the deponent (petitioner) being a advocate and a law abiding citizen has never acted in any way, contrary to law/order of any competent court of law or this Hon''ble Court and have utmost faith in the legal system cannot even dare to conceal any fact before the Hon''ble Court. Being socially aware person and looking into flagrant violation and interference in investigation, in criminal cases having wide implications over the society. Hence, invoking the jurisdiction of this Hon''ble Court.
9. That thus the statement given on the part of the State Government is misleading and not correct the information brought before this Hon''ble Court is wrong as the state government do not want the interfere of anybody in their monopoly regarding the investigation of matters by which they can easily interfere in the investigation and compell the agency to file the report according to their wish and will.
10. That the petition (PIL) filed before the Hon''ble Allahabad High Court and before this Hon''ble Court is totally different with different prayers.
11. That it is also necessary to mention here that after the order dated 23.11.2015 the deponent (petitioner) searched thoroughly and came to know that a petition with almost the similar prayer is pending before the Hon''ble Allahabad High Court titled as PIL No. 60229 of 2015 ANUP BARANWAL & OTHERS Vs. STATE OF U.P. & ORS. The same is still pending before the Allahabad High Court.
12. That since the prayer of both the petitions are absolutely different and having no relationship between the two petitions, hence, it cannot be said that the deponent (petitioner) has concealed any facts from this Hon''ble Court."
5. In view of such an affidavit of the petitioner, specifically asserting that there was no co-relation of the two petitions filed by him and hence, he cannot be said to have concealed any facts from the Court, we have proceeded to examine the contents of the present petition and have also perused the order dated 19.05.2015 passed by this Court at Allahabad in P.I.L. Petition No. 11467 of 2015.
6. The petitioner has asserted in this petition that he was filing this one as a P.I.L. because of transferring of investigation in an illegal and arbitrary manner; and that this petition was not filed with any ulterior motive and would not result in any undue gain to himself or any person associated with him or any undue loss to any person or body. The petitioner has also referred to the requirement of thorough and careful search of truth and collection of evidence by the investigating agency and has alleged that there is miscarriage of justice due to interference of other persons or agencies, which ultimately affects the rule of law. Thereafter, the petitioner has significantly indicated that he has got ''a few instances'' in his hands; and then, has referred to Case Crime No. 217 of 2013, Police Station Swaroop Nagar, District Kanpur Nagar for offences under Sections 420 , 467 , 468 , 471 , 120-B and 409 read with Section 34 IPC. The petitioner has referred to an application, said to have been made in the said case by one of the accused persons with a letter of Member of Legislative Assembly, and has alleged that because of such an application, further investigation was entrusted to the officers of the CBCID, Lucknow. The petitioner has, however, submitted that upon submission of the report of such investigation, wherein the accused persons were found guilty, they apparently again approached some "High Officials or Politician" and got the investigation transferred from Lucknow to Allahabad. The petitioner has placed on record a copy of the report of three-members committee (Annexure - 1) and another letter dated 30.07.2015 (Annexure - 2) related with the referred Case Crime No. 217 of 2013. The petitioner has, therefore, alleged that without assigning any reason, the investigation was transferred from Lucknow to Allahabad and therein, according to the petitioner, manipulation, nepotism and even corruption could not be ruled out. The petitioner has, thereafter, referred to the principles governing the duties and responsibilities of the investigating agency; and then, has made the prayers as indicated hereinabove. Thus, it is apparent on comprehension of the averments in the petition as a whole that only the investigation of Case Crime No. 217 of 2013 has been referred and all the submissions in the petition revolve only around the aforesaid case and its investigation.
7. After having taken note of the frame of this petition, when we look at the order passed by this Court in P.I.L. Petition No. 11467 of 2015 on 19.05.2015, which was filed by none other than the petitioner himself at Allahabad, the revelation is rather shocking that the said petition at Allahabad was precisely in relation to the very same case i.e., Case Crime No. 217 of 2013, Police Station Swaroop Nagar, District Kanpur Nagar. In the order dated 19.05.2015, this Court took note of the prayer made by the petitioner for a mandamus to CBCID, Kanpur and for arrest of respondent Nos. 7, 8 and 9 therein pursuant to the warrants issued against them; and the Court wondered as to whether the petition of this nature was to be entertained without proper disclosure of locus of the petitioner? The Court also found that in fact, respondent Nos. 7 and 8 had filed Criminal Misc. Writ Petition No. 8231 of 2015, that was disposed of by a Co-ordinate Bench on 09.04.2015 extending the benefit of an earlier order dated 15.01.2014. The Court further indicated that the criminal law must take its own course and, while referring to the decision of the Hon''ble Supreme Court in the case of
"An Advocate practicing at Kanpur has filed these proceedings ostensibly as a public interest litigation, seeking a mandamus to the CBCID Kanpur, the Superintendent of Police of the Crime Branch, Senior Superintendent of Police, Kanpur Nagar and the concerned Station House Officer, to arrest the seventh, eighth and ninth respondents and to produce them before a court of law in pursuance of arrest warrants issued against them by the third respondent on 16 March 2015.
The issue before this Court is whether a petition of this nature should be entertained without a proper disclosure of the locus of the petitioner. The petitioner is clearly aware of the fact that a writ petition was filed by the seventh and eighth respondents (Criminal Misc. Writ Petition No. 8231 of 2015), which was disposed of by a Division Bench of this Court on 9 April 2015. The Division Bench granted to the petitioner, in those proceedings, the benefit of an earlier order dated 15 January 2014, which is extracted in the order, and which insofar as is material, reads as follows:
"However, it is provided that if the petitioner appears/surrenders before the Court concerned within two weeks from today and applies for bail in the aforesaid case, his prayer for bail shall be considered by the courts below expeditiously in view of the settled law laid down by the seven Judges Bench of this Court in the case of
These proceedings were instituted on 3 May 2015, ten days after the period of two weeks which was prescribed had come to an end. In our view, the criminal law must take its own course as held by the Supreme Court in
We find no reason or justification to make an exception from the governing principles of the Code of Criminal Procedure, 1973, by entertaining a petition of this nature at the behest of an Advocate. There is a real danger that such proceedings are resorted to for extraneous purposes and to utilise the arm of the criminal procedure for improper ends. In the present case, the investigation is on the basis of Crime No. 217 of 2013 under Sections 420 , 467 , 468 , 471 , 120-B and 409 read with Section 34 of the Penal Code. We, however, clarify that nothing in this order shall be construed as restraining the authorities from taking necessary steps in accordance with law. We have declined to entertain the petition only on the ground of the absence of locus of the petitioner in these proceedings.
The petition is, accordingly, dismissed. There shall be no order as to costs."
8. After we had gone through the contents of the affidavit filed by the petitioner today, the contents of the petition and the aforesaid order dated 19.05.2015, another shocking revelation was made by the learned Additional Government Advocate that in fact, the petitioner himself is and has been a counsel for one of the parties involved in the litigation concerning the property forming the core of dispute in Case Crime No. 217 of 2013, which is for offences, inter alia, under Sections 420 , 467 , 468 , 471 , 120-B and 409 read with Section 34 IPC.
9. If the petitioner is or has been a counsel representing any party to the litigation intrinsically related with Case Crime No. 217 of 2013, it appeared moreover questionable if he could be acceded the right to maintain any petition by himself in the name of P.I.L. with reference to the same case i.e., Case Crime No. 217 of 2013.
10. When we queried the petitioner and his counsel present in the Court on the facts so revealed and unveiled, it was candidly admitted by the petitioner that he is indeed a counsel for one of the parties to litigation and has filed his Vakalatnama for Waqf Firdausi Begum through Mutwalli Tasiful Hasan in Case No. 1155 of 2009 related to the same property.
11. After having taken note of the matter in its totality, and while prima facie indicating thorough dissatisfaction over the conduct and approach of the petitioner, we granted time to learned counsel appearing for petitioner to examine his stand and to advice the petitioner properly; and then, to submit further affidavit of the petitioner, if so chosen. It was indicated to the petitioner and his counsel that in the first place, we were extending an opportunity to the petitioner to introspect and to choose his stand as also the course of action, if he finds himself at serious shortcomings and wanting in due performance of his duties and responsibilities as an enrolled Advocate.
12. Now, in the second session sitting of the Court, the petitioner is present in person and has also filed another affidavit, admitting lastly on the facts as have surfaced and divulged before the Court. The contents of this second affidavit filed today could be taken note of as under:-
"1. That the deponent himself is the petitioner, hence is well conversant with the facts and circumstances of the above noted case.
2. That the deponent is filing this affidavit in support of application for considering unconditional apology for filing the wrong affidavit before the Hon''ble Court in the instant Petition which is filed as Public Interest Litigation (PIL) by which the deponent has filed the Wrong Affidavit inadvertently before the Hon''ble Court.
3. That the deponent is admitting the fact that he is the Counsel in the Case No. 1155 of 2009 Naresh Krishna Somwani Versus Abdul Sattar & Others and had filed his vakalatnama for the opposite Party No. 7 (Waqf Firdausi Begum through Mutwalli Tasiful Hasan) Declaratory Suit before the Civil Judge Senior Division Kanpur which decided on 01.05.2013 and also in Case No. 117 of 2012 Waqf Firdausi Begum Versus Naresh Krishna Somwani which was filed at District Court Kanpur before the District Judge.
4. That the deponent even undertakes that he will never repeat the mistake knowingly or even unknowingly which the deponent did in the instant case in the near future.
5. That the deponent (petitioner) being a advocate and a law abiding citizen has never acted before in any way, contrary to law/order of any competent court of law or this Hon''ble Court and have utmost faith in the legal system cannot even dare to conceal any fact before the Hon''ble Court.
6. That the deponent for his conduct as the compensation will pay a cost of Rs. 25000 which the deponent himself admitting that the same is not appropriate/sufficient keeping in view the act of the deponent.
7. That the deponent most respectfully prayed to the Hon''ble Court that the unconditional apology of the deponent may kindly be accepted and the deponent seeks the pardon of the Hon''ble court.
8. That the deponent undertakes not to repeat the mistake in the near future and keeping in view the first and the last such act he may be pardoned."
13. A bare reference to the facts as taken note of and indicated hereinabove makes it clear that not much of dilatation and discussion is required to conclude that the present one has been a case of grossest abuse of process of law by none other but a practicing Advocate, who is not even new to the profession, as he was enrolled in the year 1996 at U.P. Bar Council No. 3757/96. It is more than clear on the face of the record that even the first attempt of the petitioner before this Court at Allahabad by way of P.I.L. Petition No. 11467 of 2015 had been wanting in bona fide and in fact, this aspect was softly indicated by this Court while dismissing the petition by the order dated 19.05.2015. Obviously, the Court proceeded with a hope that a supple presage would be enough of a rap on the knuckles and would suffice for the petitioner to see reasons so as to desist from indulging in any such misadventure calculated at abusing the process of law and even abusing his own position as an Advocate. However, it appears that the petitioner had other intents and purposes and hence, chose to file this petition, this time at Lucknow while attempting to camouflage the real intent in the name of so called broader issue of want of guidelines for transfer of investigations.
14. However, with lifting of veil, the real purpose behind this petition is not far to seek when the very contents of the petition are replete with the matter relating to said Case Crime No. 217 of 2013 and documents annexed with the petition essentially relate with the said case only.
15. Then, in the present petition, the petitioner concealed two very significant and crucial aspects: One, that he had filed P.I.L. Petition No. 11467 of 2015 at Allahabad that was dismissed on 19.05.2015; and second, that in fact, he is a Counsel representing one of the parties related with the property forming the dispute involved in Case Crime No. 217 of 2013. In fact, as soon as these two factors surface, the necessary corollary is that the petitioner could not have maintained this petition in the name of P.I.L. The concealment is, therefore, an active concealment, clearly calculated at abusing the process of law and misleading this Court.
16. For what has been noticed hereinabove, it is more than apparent that the present one is not a genuine P.I.L. It seems apposite to take note of the relevant observations of the Hon''ble Supreme Court in the case of
"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. As indicated above, court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs."
17. Upon our expressing reservations and dissatisfaction over the conduct of the petitioner of this case, learned counsel for petitioner in the first place made a prayer that the petitioner may be permitted to withdraw from this petition. Having regard to the circumstances, we have rejected this prayer outright. We are clearly of the view that no person could be acceded this much of latitude and liberty that he would seek to maintain a petition in the name of P.I.L. with active concealment of material facts and with oblique intents; and would even try to justify his filing of such a petition and then, would seek withdrawal only after shocking revelations are made in the Court, showing his want of bona fide from all angles. The conduct of the petitioner deserves to be deprecated and the petitioner deserves to be saddled with costs.
18. What has been noticed and discussed hereinabove makes it crystal clear that the petitioner continued with his insincere efforts even after the facts were divulged before the Court on 23.11.2015, as is apparent from the contents of the first affidavit filed today in the morning before the Court (the relevant paragraphs whereof have been reproduced hereinabove) wherein, the petitioner maintained that the two petitions were different. Interestingly, even in that affidavit, the petitioner did not divulge the other relevant fact of his engagement for one of the parties to the litigation. It has been only after all the facts were divulged by the respondents and only after we had expressed prima facie but serious reservations on the conduct of the petitioner that he chose to file the second affidavit, the contents whereof have also been reproduced hereinabove.
19. The repeated attempts on the part of the petitioner to mislead the court, to conceal material facts and to continue with his attempt in maintaining this petition, cast a doubt if he is indeed remorseful of his conduct. However, when the petitioner has stated his unconditional apology for filing wrong affidavit and has further undertaken not to repeat the mistake in future and has also suggested the amount of penalty, while admitting that the amount suggested by him would not be appropriate or sufficient, we feel that the petitioner may still be given one chance to correct himself but only after proper penalization and while deprecating such a conduct.
20. In view of what has been observed and discussed hereinabove, this petition, being of an attempt at abusing the process of law stands dismissed while deprecating the conduct of the petitioner.
21. For his gross misconduct and attempted abuse of process of law, the petitioner is saddled with costs in the sum of Rs. 50,000/- (fifty thousand), to be deposited by him with the Senior Registrar of this Court on or before 23.12.2015. If the petitioner fails to make the requisite deposit on or before the stipulated date, the Senior Registrar shall forward a copy of this order to the District Magistrate, Kanpur Nagar, who shall forthwith ensure recovery of the amount from the petitioner and its remittance to the Senior Registrar. On the amount being deposited/recovered, the Senior Registrar shall remit the same to the account of State Legal Services Authority for being utilized for legal aid.
22. In the circumstances of the case, it is also considered appropriate and hence, directed that a copy of this order shall be forwarded to the District Judge, Kanpur Nagar as also to the Chief Metropolitan Magistrate, Kanpur Nagar with the requirement that they shall keep a watch over the conduct of the petitioner, said to be a practicing Advocate at Kanpur Nagar. If any act of misconduct and misdemeanor on the part of the petitioner is noticed, they shall draw a report and immediately send the same to the Senior Registrar of this Court.
