therein, we have no doubt in holding that the petition
which is styled as PIL is nothing but a camouflage to foster
cheap and malicious publicity. It is not being disputed by
the learned counsel, that the petitioner before the court is
a political person and a busy body. The grievance of the
petitioner is primarily the religion of the Judge appointed(8)
to head the Commission of Inquiry under Act, 1952. Such
a pleading laid and pressed before a constitutional Court,
admittedly, is against the constitutional scheme without
any foundation and basis. Religion has not been assigned
any role in the appointment of judges of commissions or
for that matter for any office under the State, as such, the
petition is not only malicious but has been filed with an
ulterior motive which tantamounts to interfere not only
with the judicial process but also goes to the root in
questioning the constitutional scheme based on rule of
law.
In the given facts of this case, a serious issue on
communal lines has been pleaded tarnishing the image of
the Judge merely for the reason of his religion, which has
been the modus operandi of Sri Pande in several earlier
petitions drafted and filed by him.
ALLAHABAD HIGH COURT
Case :- MISC. BENCH No. - 13915 of 2016
Petitioner :- Indra Pal Singh (I.P. Singh)
Respondent :- State Of U.P. Thru Prin.Secy.Home Civil
Sectt. Lucknown &Ors
Dated:13-6-2016
The registry has raised an objection for deposition of
Rs. 25,000/- by Mr. Asok Pande before entertaining the
petition to be filed by him, whereas, in the present case
Mr. Pande has appeared as counsel, therefore, we are of
the view that as and when he appears as counsel the
observation of this Court in Writ Petition No. 8216 (M/B) of
2016 for deposition of cost of Rs. 25,000/- shall have no
bearing, in the result the objection is overruled and the
writ petition is entertained.
We have heard Mr. Asok Pande, learned counsel for
the petitioner, Mrs. Bulbul Godiyal, Additional Solicitor
General and Sri Jagdeep Singh Yadav, learned counsel for
the opposite party no. 2.
The petitioner has sought the following reliefs:-
"a) To issue a writ of certiorari thereby quashing
the decision of the state government dated
7/06/2016 thereby appointing a retired judge of
the Allahabad High Court namely Sri Imtiaz
Murtaza to hold the enquiry into the Jawaharbagh(2)
incident in which two police officers and several
common citizens has been murdered after
summoning the same and to direct the government
to appoint the commission headed by some judge
well versed with the Hindu Dharma.
b) To issue a writ of mandamus thereby directing
the respondents concerned to register the first
information report against the police officers for
committing the murder of several persons and to
entrust the investigation of the said case to the
Central Bureau of Investigation.
c) Issue any other order or direction as this Hon'ble
Court may deem fit in the circumstances of the
case."
At this stage, the petitioner has sought permission to
not press the relief no. (a).
Permission is granted.
Now the petitioner has pressed the writ petition only
for the relief no. (b).
The writ petition stands dismissed for the reasons to
follow.
The operative part of the order was passed in the
open court, the reasons in support of the order was
deferred for paucity of time which is being supplied.
The petition in the nature of Public Interest Litigation
(PIL) has been instituted by Sri Indra Pal Singh (I.P.
Singh) son of Sri Surya Nath Singh. The credentials of the
petitioner is detailed in paragraph 5, which reads as
follows:
"That the petitioner is a social activist and the
spokes person of Bhartiya Janta Party, he was also
the student leader and has held the office of
general secretary of the Lucknow University
students Union. He was also the chairman of Uttar
Pradesh Labor Federation for some time. At present
he is aggrieved by the massacre of the
Satyagrahies and conversion of Jawaharbagh Park(3)
into Jaliawalabagh and so approaches the Hon'ble
Court for the Central Bureau of Investigation
enquiry."
Petitioner seeks a direction to the respondents to
register a First Information Report against the police
officers for committing murder of several persons and to
entrust the investigation of the said case to the Central
Bureau of Investigation (CBI). The subject matter of the
petition pertains to an incident that occurred at Jawahar
Bagh Park at Mathura purportedly on 2 June 2016. The
occupants were evicted from the park by the District
administration pursuant to an order passed by this Court
in Vijay Pal Singh Tomar Versus State of U.P. and
others1
. The direction (dated 20 May 2015)is extracted:
"Having regard to the statement of law laid down
by this Court, we are of the view that the
authorities of the State including the Principal
Secretary (Home), District Magistrate, Mathura
and Senior Superintendent of Police must take
all necessary steps and precautions to ensure
that a public park is not allowed to be
encroached upon in this manner. The rule of law
has to be preserved. Unless a strong message is
sent out, it would only result in a situation where
a violation of law is encouraged by permitting an
encroachment on public spaces in violation of
the law.
Accordingly, we direct the respondents to
inquire into the matter and take appropriate
action in accordance with law expeditiously."
Sri Asok Pande, learned counsel for the petitioner
would contend: (i) the park (Jawahar Bagh) was not
encroached but was occupied by the occupants upon
permission obtained from the concerned authorities,
1. PIL No. 28807 of 2015(4)
though they had overstayed; (ii) satyagraha was peaceful,
the satyagrahis were not assailants; (iii) criminal force was
not used by the satyagrahis in attacking the police
personnel; (iv) F.I.R. was not lodged against erring police
officers for the murder of 32 persons; (v) the matter
relates to a dispute with respect to a Hindu religious outfit,
therefore, it is improper to appoint a Muslim Judge to
enquire into a purely religious matter, (vi) under the garb
of a direction issued by the High Court to evict the
satyagrahis, the police could not have resorted to
excessive force killing 32 civilians .
Learned counsel for the respondents have
vehemently opposed the petition contending: (i) the
petition is not maintainable as it has been instituted by a
political person; (ii) the averments in the petition is
scandalizing, (iii) under the Commission of Enquiry Act,
1952 (Act 1952) the State has power to appoint a retired
Judge to conduct the enquiry.
Before we proceed to examine the rival contentions
and submissions, it would be appropriate to scan through
the pleadings.
The petitioner admittedly is a political person being
spokesperson of a national political party and is personally
aggrieved. In paragraph 10 of the petition, it is averred
that the satyagraha by the occupants was peaceful, the
satyagrahis were not assailants, further, the occupants of
the park have a fundamental right to assemble in a public
place. The force used by the police personnel to evict the
satyagrahis resulting in the death of 32 civilians is an(5)
example of excessive force inflicted against the occupants.
The State including the Home Secretary and Director
General of Police are defending the police action.
In paragraph 19 of the petition, it has been
categorically pleaded that in appointing Justice Imtiaz
Murtaza a former Judge of the High Court to enquire into
the incident, being a muslim, would not be justified as the
issue pertains to a hindu religious outfit related to Baba Jai
Gurudev, therefore, it is averred that some Judge well
versed with Hindu culture and Dharma should be
appointed to enquire the matter. Paragraph 19 of the
petition reads as follows:
"That the petitioner is praying for the quashing
of the justice Imtiaz Murtaza Commission for the
reason that the matter relates to a dispute with
respect to a Hindu religious outfit and so it is
improper to appoint a Muslim Judge to enquire into
a purely religious matter related with Baba Jai
Gurudev and so in place of Sri Imtiaz Murtaza, some
judge well versed with Hindu culture and Dharma
should be appointed to enquire the matter. The
petitioner also want to change the head of the
enquiry commission from Sri Imtiaz Murtaza to
some another judge as it will be difficult for Sri
Murtaza himself to understand the basic problem
which is one of the reason of Ram Vrikchh Yadav
coming to Mathura and staying there for more than
2 years in Jawahar Bag Park where the incident took
place".
In paragraph 20, assertions have been made that the
investigation of the incident at Mathura be transferred to
CBI, though no such prayer has been made but was
verbally pressed by Sri Pande.
Only prayer pressed by learned counsel for the
petitioner is that the respondents be directed to register a(6)
First Information Report (FIR) against the police officers
In our opinion, such a direction at this stage cannot
be issued as the petitioner, under the Criminal Procedure
Code (Cr.P.C.), can himself lodge a F.I.R. or take recourse
to the procedure prescribed therein by approaching the
concerned Magistrate. A direction for which remedy is
available under law would not generally be issued by the
Court unless compelling circumstances in not registering
the F.I.R. is pleaded and supported by documents showing
the bonafide intention of the petitioner. The entire petition
is bereft of the material details of the unfortunate incident
that occurred at the park. The details leading to the
incident has not been pleaded. How and why the park was
occupied; whether prior permission was obtained from the
district authorities; the number of occupants, their
composition i.e. number of men, women and children
assembled in the park has not been given by the
petitioner. The dynamics and the economics of the supply
of food and lodging of occupants in sustaining themselves
for two years is missing. Whether the occupants were
members of a militant outfit shielding themselves behind
innocent persons, including women and children, is not
known to the petitioner. Whether any arms and
ammunitions were seized from the occupants, if yes, how
did it reach the park has not been explained, rather the
petitioner, though being a political person, has maintained
an eerie silence.
The petitioner neither the learned counsel appearing
for the petitioner have made any effort to ever peruse the(7)
order passed in Vijay Pal Singh Tomar case (supra). The
Court noticed therein that an organisation in the name of
Swadheen Bharat Vidhik Satyagrah also known as
Swadheen Bharat Subhash Sena occupied the park since
11 January 2014. The District Magistrate on 15 August
2014 addressed a communication to the Chief Secretary of
the State Government regarding unauthorized occupation
of the park by a group of persons. The District Horticulture
Officer, Mathura also addressed a communication to the
Senior Superintendent of Police, Mathura on 17 March
2015 with a copy to the Divisional Commissioner and the
Collector, Mathura for necessary action. The letter records
that two thousand four hundred trees have been burnt by
the occupants illegally occupying the park, causing
damage to the property of the State. On 27 April 2015,
the Commissioner, Agra Division, Agra has addressed a
communication to the Collector and Senior Superintendent
of Police noting that members of Swadheen Bharat Vidhik
Satyagrahi (Jai Gurudev) have taken over unlawful
possession of the public park; that employees are being
assaulted and nearly three thousand trees have been
destroyed for firewood.
On reading the petition and the averments made
therein, we have no doubt in holding that the petition
which is styled as PIL is nothing but a camouflage to foster
cheap and malicious publicity. It is not being disputed by
the learned counsel, that the petitioner before the court is
a political person and a busy body. The grievance of the
petitioner is primarily the religion of the Judge appointed(8)
to head the Commission of Inquiry under Act, 1952. Such
a pleading laid and pressed before a constitutional Court,
admittedly, is against the constitutional scheme without
any foundation and basis. Religion has not been assigned
any role in the appointment of judges of commissions or
for that matter for any office under the State, as such, the
petition is not only malicious but has been filed with an
ulterior motive which tantamounts to interfere not only
with the judicial process but also goes to the root in
questioning the constitutional scheme based on rule of
law.
Supreme Court in Holicow Pictures Pvt. Ltd.
Versus Prem Chandra Mishra and others2
, observed as
under:
"10. When there is material to show that a petition
styled as a public interest litigation is nothing but a
camouflage to foster personal disputes, the said petition
is to be thrown out. Before we grapple with the issue
involved in the present case, we feel it necessary to
consider the issue regarding public interest aspect.
Public Interest Litigation which has now come to occupy
an important field in the administration of law should
not be "publicity interest litigation" or "private interest
litigation" or "politics interest litigation" or the latest
trend "paise income litigation". If not properly regulated
and abuse averted, it becomes also a tool in
unscrupulous hands to release vendetta and wreck
vengeance, as well. There must be real and genuine
public interest involved in the litigation and not merely
an adventure of knight errant borne out of wishful
thinking.....
17. It is depressing to note that on account of such
trumpery proceedings initiated before the Courts,
innumerable days are wasted, the time which otherwise
could have been spent for disposal of cases of the
genuine litigants. Though we spare no efforts in
fostering and developing the laudable concept of PIL
and extending our long arm of sympathy to the poor,
the ignorant, the oppressed and the needy, whose
2. AIR 2008 SC 913(9)
fundamental rights are infringed and violated and
whose grievances go unnoticed, un-represented and
unheard; yet we cannot avoid but express our opinion
that while genuine litigants with legitimate grievances
relating to civil matters involving properties worth
hundreds of millions of rupees and criminal cases in
which persons sentenced to death facing gallows under
untold agony and persons sentenced to life
imprisonment and kept in incarceration for long years,
persons suffering from undue delay in service matters -
government or private, persons awaiting the disposal of
cases wherein huge amounts of public revenue or
unauthorized collection of tax amounts are locked up,
detenu expecting their release from the detention
orders etc. etc. are all standing in a long serpentine
queue for years with the fond hope of getting into the
Courts and having their grievances redressed, the
busybodies, meddlesome interlopers, wayfarers or
officious interveners having absolutely no public interest
except for personal gain or private profit either of
themselves or as a proxy of others or for any other
extraneous motivation or for glare of publicity break the
queue muffing their faces by wearing the mask of public
interest litigation and get into the Courts by filing
vexatious and frivolous petitions and thus criminally
waste the valuable time of the Courts and as a result of
which the queue standing outside the doors of the
Courts never moves, which piquant situation creates
frustration in the minds of the genuine litigants and
resultantly they loose faith in the administration of our
judicial system." (Refer:The Janta Dal v. H.S.
Chowdhary3
, and Kazi Lhendup Dorji v. Central
Bureau of Investigation4
. Ramjas Foundation v.
Union of India5
and K.R. Srinivas v. R.M.
Premchand6
.
Division Bench of this Court in Swami Prasad
Maurya and another Versus State of U.P. and
others7
, made the following observations:
"......A public purpose may be protected
under a political theology or agenda of a political or
social entity, but the protection of a public purpose
has to be in public interest and not on mere
3. [1992] 4 SCC 305
4. [1994] Supp 2 SCC 116
5. AIR (1993) SC 852
6. [1994] 6 SCC 620]
7. decided on 26.11.2016 in Writ Petition No. 10841 (M/B) of 2015(10)
political considerations. A legal battle for a public
purpose cannot be utilised for settling political
scores................ A public purpose cannot be a
game dice on the choice of politicians in a legal
arena. The wrestling theatre for achieving political
mileage is elsewhere and not a court of law......"
We need not burden the order by referring to the
large number of judgments rendered by the Apex Court on
the scope and ambit of PIL. Having considered the
statement of law, we are of the view that the present
petition is not a bonafide PIL but has been filed with some
ulterior motive to gain political millage and to scandalize
not only the administration of justice, but also the
Government in appointing Commission of Inquiry headed
by Justice Imtiaz Murtaza, a former Judge of this Court.
We have recorded in the earlier part of the order that the
necessary details of the incident has not been spelled by
the petitioner, nor did he approach any of the authorities
in lodging F.I.R. of the incident. The counsel for the
petitioner was unable to suitably reply to the specific
query of the Court regarding petitioner not approaching
any of the State Authorities. It is in this background, we
hold that the petition styled as PIL is not a genuine
petition filed for the aid and assistance of the families
which have suffered due to the illegal occupation of the
park by members of a self styled organization.
As regards the conduct of Sri Asok Pande, learned
counsel for the petitioner, it may be noted that a Division
Bench of this Court in Hindu Personal Law Board
Versus Union of India and others (Writ Petition No.
8216 (M/B) of 2016) vide order dated 19.04.2016
passed in a petition, filed in the nature of a PIL by Sri(11)
Pande in person, the Court admonished the conduct of Sri
Pande and directed the Registry of this Court that each
petition instituted by Sri Pande in person be accepted for
filing, only if, it is accompanied by a demand draft of Rs.
25,000/-.
In the given facts of this case, a serious issue on
communal lines has been pleaded tarnishing the image of
the Judge merely for the reason of his religion, which has
been the modus operandi of Sri Pande in several earlier
petitions drafted and filed by him.
We are constrained to take notice of the fact that Sri
Pande, a practicing lawyer of this Court, who has a
standing at the Bar, however, since long has been
indulging in reckless drafting, which is not only malicious
and motivated but the conduct of the counsel is
unbecoming of a legal practitioner which ultimately
tantamounts to misconduct under the Advocates Act, 1961
(Act 1961). A professional duty includes the counseling to
client, legal opinions, drafting, affidavits, pleading and
participating in law conferences. The duty requires, the
counsel to maintain the decorum of judicial proceedings,
take great care and caution while drafting a petition
without tarnishing the image of any institution, office,
Judge or the Constitution. The averments made in para
19, which has been extracted hereinabove, would clearly
indicate the reckless and causal approach of the learned
counsel. The averments specially seeking a direction to
appoint a commission headed by "some Judge well
versed with the Hindu Dharma", further, "the persons(12)
who murdered Satyagrahies are not properly
prosecuted and punished, it will ruin the basic
fundamental right guaranteed by Article 19 of the
Constitution and in any place in the country, if
a Satyagrah or Dharna on a particular issue by a
particular group may be a political party or
religious outfit, will not suit the State
Administration, the persons doing Satyagrah will
be murdered in the name of police action and
encounter.", further, ground (h) reads as follows:
"even in the case of Ishrat Jehan, a lady
accompanying with Pakistani terrorist and their
killing in police encounter, the CBI enquiry took
place whereas in the present matter, the persons
who died were such citizens who left their house
for years with the object to change the present
way of governance and peacefully protesting in a
park, which was a public park and the persons who
gathered there were not the Pakistani terrorist,
rather, the common citizens who were protesting
without any violence from more than 2 years."
The petition read as a whole and especially the
averments extracted would, prima facie, establish that it is
a deliberate and willful act of the counsel, the reason is
not for behind.
In Hindu Personal Law Board case (supra) where
Sri Asok Pande appeared in person, the Court taking
notice of his conduct and drafting noted as under:-
"We find prima facie that the manner in which the
petition has been drafted and an effort has been made
to target the Chairperson of the Organizing Committee(13)
at Lucknow, who is a sitting Judge of the High Court, is
a scandalous attempt to lower the dignity of the Court.
9. That it appears that this 'Harkat' to hurt the
sentiments of Hindus was planned by the Chairman of
the organizing committee, Sri Shabibul Hasnain and his
other religious men in the High Court administration to
give the befitting reply to the Governor Sri Ram Naik as
during the day session, in the presence of Sri Hamid
Ansari, Vice President of India, Sri Ram Naik did Ram
Katha and congratulated the persons gathered there on
the eve of the Navratri and Ram Navami
10. That it appears that only to give befitting reply to
the Governor and other Hindus, the evening culture
program, which should have been started with Saraswati
Vandana and Vande Mataram started with Allah-hu,
Allah-hu, in the name of so-called Sufi gayan."
Further, the Court noted that "the petitioner (Sri
Pande) is habituated in filing petitions
ostensibly styled as public interest
litigation. ........ On numerous occasions,
various courts have found Sri Ahok Pande to have
indulged in drafting pleadings which would not
give credit to a member of the legal profession."
The details of the previous petitions filed by Sri Pande
wherein malicious averments were made was taken notice
by the Division Bench. A petition, inter alia, sought to
challenge the appointment of the Governor of the State of
U.P. which was dismissed being frivolous and highly
mischievous. Similarly, appointment of Lok Ayukta was
assailed, in which, former Chief Justice, a retired Judge of
this Court and a sitting Judge of the Supreme Court were
impleaded, wherein, the Court while dismissing the
petition was of the opinion that the petition reflected the
personal grouse of the petitioner regarding the Judges and
orders passed by them and his own interpretation of such
orders. The Division Bench after taking notice of the(14)
earlier petitions drafted and filed by Sri Pande passed the
following orders:
"First and foremost, we direct the issuance of a notice
to the petitioner and Shri Asok Pande to show cause
as to why they should not be proceeded against for
committing criminal contempt under the Contempt of
Courts 1971.............We are of the view that before
this Court entertains a petition at the behest of the
aforesaid entity and person, a direction should be and
is issued to the Registry to the effect that each
petition be accepted for filing only if it is accompanied
by a Demand Draft of Rs 25,000/- (Rupees Twenty
Five Thousands Only) drawn on a nationalised
Bank. ......"
Similarly, in a subsequent petition being Writ Petition
No. 5085 (M/B) of 2016, Allama Zamir Naqvi, General
Secretary of All India Muslim Council Versus State of
U.P and others, Shri Pande assailed the appointment of
Justice Vishnu Sahai, a former Judge of this Court and
former Member of the U.P. Human Rights Commission as a
one-man commission under the Commission Enquiry Act
1952. The Division Bench repelling the argument for
transferring the investigation to CBI instead of a
commission being appointed by the Government under the
Act 1952, observed as follows:-
"The other argument with regard to setting up an
investigation through the CBI cannot be mixed up
with the issue relating to the appointment of a
Commission by the Government under the 1952
Act. The issue of transferring a criminal
investigation to the CBI has to be founded on
appropriate facts which are to be pleaded in
order to persuade a Court of Law to pass an
order for taking up the investigation by some
other agency. The present writ petition as
framed does not bring on record any such
material that may impel us to draw a
conclusion that the investigation now
deserves to be carried out by some other
agency. (15)
The question of entrusting the investigation to the
CBI can only be considered if there is sufficient
material as delineated in the case of Secretary,
Minor Irrigation & Rural Engineering
Services, U.P. and others versus Sahngoo
Ram Arya and another [(2002) 5 SCC 521]. It
is no doubt true that the Constitution Bench in the
case of State of West Bengal and others
versus Committee for Protection of
Democratic Rights, West Bengal and others
[(2010) 3 SCC 571] has acknowledged the
powers of the Court to order an investigation by
the CBI. The powers of the Court are
circumscribed and can be exercised only if there is
sufficient material to do so as per the ratio in the
cases indicated above. Two other judgments may
be mentioned where the Supreme Court has
traversed the law relating to the powers of the
High Court in proceeding to order for a CBI
enquiry, namely, Bharati Tamang versus Union
of India and others [(2013) 15 SCC 578] and
Mithilesh Kumar Singh versus State of
Rajasthan and others [(2015) 9 SCC 795].
The said issue has also been dealt with in the
latest decision of the Supreme Court in the case of
Pooja Pal versus Union of India and others
[JT 2016 (1) SC 430]."
That apart, the tone and tenor of Sri Pande while
addressing the Court is of arrogance and threat which is
also reflected from his body language. Upon being warned,
Sri Pande would insist on advancing arguments without
taking care of maintaining the decorum and dignity of the
Court. Sri Pande would thereafter insist that his arguments
be incorporated and noticed in the order irrespective of its
legal relevance.
Having considered the given facts and circumstances
of the case, we are of the considered opinion that the
petition styled as PIL is a frivolous, mischievous petition
filed for personal gains instituted at the behest of a person
seeking publicity, therefore, deserves to be dismissed
with cost assessed at Rs. 25,000/- to be deposited by the(16)
petitioner with the Collector Lucknow within eight weeks
from date, failing which, the District Magistrate, Lucknow
shall recover the sum as arrears of land revenue from the
petitioner Indra Pal Singh.
The conduct of Sri Asok Pande in filing and drafting
reckless petitions containing scandalous pleadings and
being motivated by personal agenda to malign the persons
holding constitutional positions tantamounts to misconduct
unbecoming of a responsible legal practitioner which is
violative of the provisions of Advocates Act, 1961 and the
Rules framed thereunder.
Having due regard to the contents of the plethora of
petitions drafted and filed by Sri Pande and the averments
made therein, we are, prima facie, of the opinion that Shri
Pande is incorrigible. Despite strictures and orders passed
against him by the Court on several occasions, Sri Pande
has shown no remorse or regret, it would, therefore, be in
the interest of justice that the matter be referred to the
Bar Council of Uttar Pradesh to initiate disciplinary
proceedings against Sri Pande to adjudge his suitability to
continue practice as an Advocate.
Registrar is, therefore, directed to send a copy of this
order to the Chairman, Bar Council, U.P., Allahabad
alongwith the order dated 19 April 2016 passed in Hindu
Personal Law Board Versus Union of India and
others (Writ Petition No. 8216 (M/B) of 2016) for
compliance. It is expected that the Council would conclude
the enquiry within three months from the date of service
of this order provided Sri Pande cooperates with the(17)
enquiry. It will be open for the Council to consider as to
whether the certificate to practice granted to Sri Pande
needs to be suspended during enquiry.
We clarify that the observations which are contained
in this order on the facts which have led to refer the
matter to the Bar Council is only a prima facie expression
of opinion of the Court with regard to the conduct of Sri
Pande, the Council shall pass order on merit without being
influenced by the observations made in the order.
Order Date :- 13.6.2016
kkm/
(Suneet Kumar, J.) (Shri Narayan Shukla,J.)
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