IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1406 of 2012

Decided On: 18.10.2012

Appellants: Kishore Samrite

Vs.

Respondent: State of U.P. and Ors.

Hon'ble Judges/Coram:

B.S. Chauhan and Swatanter Kumar, JJ.

Counsels:

For Appearing Parties: Harin P. Raval, ASG, P.P. Rao, Rakesh Diwedi, S.P. Singh and K.T.S. Tulsi, Sr. Advs.,
Gaurav Bhatia, ASG, Kamini Jaiswal, Asbhimanue Shrestha, S.M. Royekwar, R.K. Shukla, Ajay Singh, Kr.
Prashant, Mahalakshmi Pavani, G. Balaji, Rajiv Nanda, P.K. Dey, B.V. Balaram Das, Arvind Kumar Sharma,
Mohd. Fuzail Khan, Gaurav Dhingra, V.K. Biju, Sadhana Sandhu, Sunita Sharma, Anil Katiyar,
Subramonium Prasad, Raj Kamal and Kuber Boddh, Advs.

Subject: Criminal

Catch Words

Mentioned IN

Acts/Rules/Orders:
Indian Penal Code 1860, (IPC) - Section 120B, Indian Penal Code 1860, (IPC) - Section 181, Indian Penal
Code 1860, (IPC) - Section 191, Indian Penal Code 1860, (IPC) - Section 211, Indian Penal Code 1860,
(IPC) - Section 376, Indian Penal Code 1860, (IPC) - Section 469, Indian Penal Code 1860, (IPC) - Section
499, Indian Penal Code 1860, (IPC) - Section 500; Code of Criminal Procedure (CrPC) - Section 320(4),
Code of Criminal Procedure (CrPC) - Section 330(2), Code of Criminal Procedure (CrPC) - Section 335(1),
Code of Criminal Procedure (CrPC) - Section 339; Allahabad High Court Rules, 1952 - Rule 1, Allahabad
High Court Rules, 1952 - Rule 1(2), Allahabad High Court Rules, 1952 - Rule 54, Allahabad High Court
Rules, 1952 - Rule 73; Constitution of India - Article 21, Constitution of India - Article 32, Constitution of
India - Article 136, Constitution of India - Article 225, Constitution of India - Article 226; Rajasthan High
Court Ordinance, 1949

Cases Referred:

Ram Prakash Shukla v. Union of India and Ors. Writ Petition No. 3719/2009; State of Rajasthan v.
Prakash Chand and Ors. MANU/SC/0807/1998 : (1998) 1 SCC 1; State of Uttar Pradesh and Ors. v. Neeraj
Choubey and Ors. MANU/SC/0714/2010 : (2010) 10 SCC 320; Dalip Singh v. State of U.P. and Ors.
MANU/SC/1886/2009 : (2010) 2 SCC 114; Amar Singh v. Union of India and Ors. MANU/SC/0596/2011 :
(2011) 7 SCC 69; State of Uttaranchal v. Balwant Singh Chaufal and Ors. MANU/SC/0050/2010 : (2010) 3
SCC 402; P.S.R. Sadhanantham v. Arunachalam and Anr. MANU/SC/0083/1980 : (1980) 3 SCC 141;
Tilokchand H.B. Motichand and Ors. v. Munshi and Anr. MANU/SC/0127/1968 : 1969 (1) SCC 110; A.
Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam and Anr.
MANU/SC/0336/2012 : (2012) 6 SCC 430; Chandra Shashi v. Anil Kumar Verma MANU/SC/0558/1995 :
(1995) 1 SCC 421; Abhyudya Sanstha v. Union of India and Ors. MANU/SC/0612/2011 : (2011) 6 SCC 145;
State of Madhya Pradesh v. Narmada Bachao Andolan and Anr. MANU/SC/0599/2011 : (2011) 7 SCC
639; Kalyaneshwari v. Union of India and Anr. MANU/SC/0217/2011 : (2011) 3 SCC 287; K.D. Sharma v.
Steel Authority of India Ltd. and Ors. MANU/SC/3371/2008 : (2008) 12 SCC 481; Buddhi Kota Subbarao
(Dr.) v. K. Parasaran MANU/SC/0678/1996 : (1996) 5 SCC 530; Simranjit Singh Mann v. Union of India
MANU/SC/0058/1993 : (1992) 4 SCC 653; S.P. Gupta v. Union of India MANU/SC/0080/1981 : AIR (1982)
SC 149; Karamjeet Singh v. Union of India MANU/SC/0059/1993 : (1992) 4 SCC 666; Janata Dal v. H.S.
Chowdhary, MANU/SC/0532/1992 : (1992) 4 SCC 305; Jasbhai Motibhai Desai v. Roshan Kumar; R & M
Trust v. Koramangala Residents Vigilance Group MANU/SC/0049/2005 : (2005) 3 SCC 91; Dattaraj
Nathuji Thaware v. State of Maharashtra; Charanjit Lal Chowdhury v. The Union of India and Ors.
MANU/SC/0009/1950 : AIR 1951 SC 41; Ghulam Sarwar v. Union of India MANU/SC/0062/1966 : AIR
1967 SC 1335; Kirti Kumar Chaman Lal Kundaliya v. Union of India MANU/SC/0164/1981 : AIR 1981 SC
1621; In Re: Shri Sham Lal MANU/SC/0393/1978 : (1978) 2 SCC 479; Samant N. Balkrishna and Anr. v. V.
George Fernandez and Ors. MANU/SC/0270/1969 : (1969) 3 SCC 238; Gosu Jayarami Reddy and Anr. v.
State of Andhra Pradesh MANU/SC/0868/2011 : (2011) 11 SCC 766; Smt. Kiran Bedi v. The Committee of
Inquiry and Anr. MANU/SC/0512/1989 : (1989) 1 SCC 494; Nilgiris Bar Association v. T.K. Mahalingam
and Anr. AIR 1998 SC 398; Kusum Lata v. Union of India MANU/SC/8225/2006 : (2006) 6 SCC 180
Citing Reference:

Discussed

16

Mentioned

15

Prior History:

From the Judgment and Order dated 07.03.2011 of the Hon'ble High Court of Allahabad at Lucknow in
WP No. 111 of 2011

Disposition:

Disposed off

Case Note:

Civil - Transfer of matter - Rule 1 of Chapter 21 of Allahabad High Court Rules and Article 226 of
Constitution of India, 1950 - Present Appeal filed against order dismissing writ petition for issuing writ of
habeas corpus commanding opposite party, Respondent No. 6 to produce Petitioners before High Court
- Whether there was violation of principles of natural justice and whether transfer of Writ Petition was
in accordance with law - Held, it appeared that petition for habeas corpus had been filed by Appellant
while referring to news on website in relation to incident to effect that since Petitioners, because of
their illegal detention by Respondent No. 6 - Said writ petition was treated as private habeas corpus and
was listed before Single Judge - Rule 1 of Chapter 21 of Rules provides that application under Article 226
of Constitution for writ in nature of habeas corpus, except against private custody, if not sent by post or
telegram, shall be made to Division Bench appointed to receive applications or on any day on which no
such Bench is sitting, to Judge appointed to receive applications in civil matters - It appeared that on
strength of Rule, writ petition in question was listed before Single Judge - Roster and placing of cases
before different Benches of High Court was unquestionably prerogative of Chief Justice of that Court -
There were no dispute to fact that no order was passed by Chief Justice of High Court, transferring writ
petition for hearing from Single Judge before which it was pending, to Division Bench of that Court - On
basis of allegations made in writ petition, that matter had been listed before Single Judge - If this writ
petition was improperly instituted before Single Judge then it was for Registry of that Court or any of
contesting parties to that petition, to raise objection in that behalf - Objection could relate to
maintainability on facts pleaded - If second writ petition was filed for transfer of first writ petition, this
power fell within exclusive domain of Chief Justice or Senior Judge in charge for that purpose - Therefore
transfer of first writ petition by Division Bench to its own Board was order lacking administrative judicial
propriety - It also appeared that adequate hearing had not been provided to writ Petitioners before
dismissal of first writ petition by Division Bench

Miscellaneous - Abuse of process of Court - Whether both or any of Petitioners in first writ petition were
guilty of suppression of material facts, not approaching Court with clean hands and thereby abusing
process of Court - Held, without verification of any facts, Appellant made irresponsible statement that
Petitioners/detenues were in illegal detention of Respondent No. 6 - Writ Petition was based upon facts
which Appellant learnt and believed during visits - There were contradiction and falsehood in stand
taken by Appellant in writ petition and in affidavit filed in Appeal before present Court - It was found
that Appellant's acting as next friend of Petitioners smacks of malice, ulterior motive and misuse of
judicial process - Alleged website provided that girl was missing - It was not reported there that she and
her parents were in illegal detention of Respondent No. 6 - Therefore it could not be a case of habeas
corpus - Present Court could not permit judicial process to become instrument of oppression or abuse or
to subvert justice by unscrupulous litigants like Appellant and Petitioners - It was matter of regret that
process of Court had been abused by unscrupulous litigants just to attain publicity and adversely affect
reputation of another politician, Respondent No. 6 - Appellant was deprived of adequate hearing by
High Court but that defect stands cured inasmuch as present Court had heard of concerned parties -
Transfer of writ petition was not in consonance with accepted canons of judicial administrative propriety
- Imposition of such heavy costs upon Appellant was not called for in circumstances of case as High
Court was not dealing with suit for damages but with petition for habeas corpus, even if petition was not
bona fide - Moreover question of paying rewards to Director General of Police did not arise as police
were only performing their duties by producing Petitioners/detenues in Court - Petitioners had made no
complaint to any person and therefore question of their illegal detention and consequential release
would not arise - Present Court opined that reputation of Respondent No. 6 had been damaged,
factually and in law and his public image diminished due to undesirable acts of Appellant and
Respondent No. 8 - Therefore present Court unable to sustain order under Appeal in its entirety and
while modified judgments under Appeal that while dismissing Petition, Court imposed exemplary costs,
being payable to Respondent No. 6, and CBI should submit its report to Court of competent jurisdiction
as expeditiously as possible - Appeal disposed of in said terms

JUDGMENT
Kishore Samrite vs. State of U.P. and Ors. (18.10.2012 - SC) : MANU/SC/0892/2012

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 and Anr. MANU/SC/0083/1980 : (1980) 3 SCC 141, the Court held:

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.

Kishore Samrite vs. State of U.P. and Ors. (18.10.2012 - SC) : MANU/SC/0892/2012