Durga Shibaprasad Roy Another v. Union Of India Others

1. Nowadays, political rivalry accounts for a substantial share of homicidal deaths in this country. Since such unfortunate deaths have become a regular feature, people seem to take it in their stride. Initially a lot of noise is created and sympathizers flock in numbers, if the deceased is someone of repute. Those not so reputable and fortunate have only their family members to mourn their death. Gradually, with passage of time, people tend to forget the incidents. When the time is almost ripe for the incidents to entirely fade from one’s memory, comes the verdict of court. Depending upon the stature of the deceased and the outcome, be it conviction or acquittal, there is another round of hullabullah for gaining political mileage. If proceedings are carried before a higher court, none else is bothered except the family members of the deceased. There is no guarantee that their ordeal would come to an end with the pronouncement of the decision by such court. Their agony would mount if further proceedings are taken to the superior court. By the time such proceedings are finally decided, the incidents pass into oblivion. Fresh politically motivated homicidal deaths, which take place in the meanwhile, take centre stage. It is a continuous process that goes on and on and no end to it is visible. I guess, people in every state of the country have the same story to tell.

2. However, contrary to such common experience of all, one incident that has stood the test of time and is still etched in the memory of the citizenry of this State occurred in Burdwan town on March 17, 1970. The incident has been remembered as the ‘Sainbari’ killings. Shorn of unnecessary details, three youths (Pranab Kumar Sain, Moloy Kumar Sain and Jiten Roy) were murdered in broad daylight. On a complaint being lodged, the customary First Information Report was registered as Burdwan Police Station Case No. 50 of 1970 under various sections of the Indian Penal Code to bring the perpetrators of the murderous attack to justice. The State Government was not slow to react. Hon’ble Tarapada Mukherjee, J., a retired judge of this Court, was appointed by the State Government as Commission of Inquiry (hereafter the Mukherjee Commission) in exercise of power conferred by Section 3 of the Commissions of Inquiry Act, 1952 (hereafter the Act) vide notification dated April 28, 1970. The terms of reference read:

“1. What were the causes which led to the incident at Burdwan on 17th March 1970 resulting in the death of three persons and injury to several others.

2. Were the police and other local officials negligent in the discharge of their duty to prevent the occurrence and to protect the lives, persons and property of the persons killed and injured.

3. If the answer to the question No. 2 is in the affirmative, what were the causes of this negligence and dereliction of duty.

4. Any other matter relevant to or incidental to the above question, which the Commission may deem fit and proper to investigate.”

3. The Mukherjee Commission, after receiving evidence and threadbare consideration of the materials on record, submitted its report dated July 27, 1970 to the State Government. The summarized answers to the terms of reference, in seriatim, are to the following effect:

i) “***There is no question that the looting, arson, wilful damage, killings and assaults were the acts of the crowd composed of CPI(M) supporters which had collected that morning in that locality. Whatever was done inside that house that day could be consistent only with the mad outburst of a crowd; it was wholly inconsistent with what was expected from individuals acting in satisfaction of a previous grudge.

Summary

Malay and Pranab, as the evidence shows, were important characters on the stage in the political struggle between the CPI(M) and the Congress at Burdwan. They appear to have played an important part in the game of power politics, in the battle for ascendancy between the parties and the CPI(M) naturally bore a grudge against them. …… There cannot be any question that the crowd that collected in the Shibtala area was responsible for the incidents and it comprised the supporters of the CPI(M) party. The bombing on the procession carrying flags and festoons of the CPI(M) party, the clamour for the arrest of Malay, the arrival of other processions from different directions, the siege of the house of the Sain brothers, the resistance to the operation of the Fire Brigade, the arson, the murders and assaults, considered in the background of the call for hartal and in the context of the prevalent atmosphere, are all seen to form links of one chain which points unmistakably to the identity of that crowd. There could be no escape from this crowd except by adequate police action, which was lacking. The ghastly tragedy was the result.***”

ii) “On a consideration of the record so far as the second term of reference is concerned the inevitable conclusion must be that the District Administration and the police were negligent in the discharge of their duty. *****

There was a complete breakdown of the intelligence machinery with the result that outward signs of trouble were not brought to the notice of the authorities.

The disruption of the telephone service should have been viewed as a danger signal denoting that the rank and file was not heeding to the leadership. The DM being informed of the disruption intimated the SP about it and took no further steps to keep himself in touch with events. The SP shoved off the responsibility in the matter to the Addl. SP and thought that he had done enough in the matter. A proper appreciation of the situation should have led the DM and the SP or at least either of them to the PS or the RT Control Room where all important information would come in.

****The SDO has to answer for his failure to deal with the excited armed crowd in the proper manner and to give proper direction to the police to disperse it and to see to the safety of the Sain family. The District Administration including the police suffered that day from a sense of utter complacency and even when the need for action was realized, moved extremely slowly and exhibited incompetence in every movement with disastrous results.”

iii) “A consideration of the materials on record in relation to the third term of reference leads me to the conclusion that the reason behind the dereliction of duty so far as the DM and the SP are concerned was an unwarranted feeling of complacency which led them to hope that nothing untoward would happen.

The Addl. SP lacked experience but two experienced officers, the DSP (D & T) and the OC of the police station were with him.

They all became negligent in the discharge of duty as a result of underassessment of the situation and miscalculation of its potentialities when the symptoms of a catastrophe were writ large in the happenings that were reported. The SDO placed in charge of his first subdivision only a month and a half before the incident was lacking in experience too and he was simply bewildered and overwhelmed by events. These were the causes of their negligence and dereliction of duty which made it so much the easier for the miscreants to indulge in their nefarious activities that day.”

iv) “In connection with the last term of reference I would only like to refer to and consider a serious allegation touching the integrity of the Burdwan Police that was made by the Burdwan Citizens Committee and their associates. The allegation is that the GD book of the PS was tampered with in so far as it concerned the entries having a bearing on the incident under enquiry. …… The GD and FIR books are supplied by the Press and Forms Department and the vagaries of printing and pagination must account for the differences which raised so much suspicion in relation to the GD book in question. These differences again start with page 77 but there is nothing in pages 77 and 78 to require their substitution. The important entries start from page 79 onward and if tampering with the original entries was intended, substitution should have started with that page. This also is an aspect of the matter deserving consideration. I cannot in the result accept the allegation of fabrication of the GD book.”

5. The report of the Mukherjee Commission was published in the Calcutta Gazette Extraordinary on February 25, 1972.

6. Investigation of Burdwan Police Station Case No. 50/1970 ultimately resulted in chargesheet being filed before the concerned Magistrate under Sections 148/149/302 and 149/436, Indian Penal Code. Very many persons were accused of commission of the heinous crime of murdering Pranab, Moloy and Jiten. They owed allegiance to a political party that came to power in the State in 1977. Some of the accused had absconded and thus could not be arrested. After commitment of the case to the Court of Session, charges were framed against the accused. The Public Prosecutor, on the very same day after charges were framed, prayed for withdrawal of prosecution. The Additional Sessions Judge, 3rd Court, Alipore (I have been informed that there was an order from this Court directing trial by such court on transfer) considered the prayer of the Public Prosecutor and granted the same in exercise of power conferred by Section 321 of the Code of Criminal Procedure (hereafter the Cr.P.C.). The accused resultantly were acquitted. The political party that came to power in 1977 ruled this State for long 34 (thirty-four) years till 2011, when a rival political party was voted to power. For all these years, the report of the Mukherjee Commission gathered dust. The present Government formed an opinion that the ‘Sainbari’ killings was a matter of definite public importance and, accordingly, appointed Hon’ble Arunava Basu, J., a retired judge of this Court, as the Commission of Inquiry (hereafter the Basu Commission) vide notification dated June 27, 2011. The terms of reference read:

“a. To inquire into the events leading to the occurrence of the incident on the 17th March, 1970 at Pratapeswar Sbibtala in the District of Burdwan, being Burdwan Police Station case No. 50 dated the 17^th March, 197;

b. To inquire about the people involved and/or responsible for the incident;

c. To inquire into the details of the victims and/or persons affected;

d. To inquire into the role of the police and/or other authorities;

e. To examine the report of the “Mukherjee Commission” and to ascertain as to whether the same was accepted by the State Government and other incidental matters relating thereto;

f. To inquire into the details of compensation paid to the victims;

g. To inquire into the current condition of the families of the victims;

h. To inquire into the status of the police cases registered on the incident;

i. To examine any other matters relevant to or incidental thereto above questions which Commission may deem fit and proper to investigate.”

7. W.P. No. 7114 (W) of 2012 and W.P. No. 10259 (W) of 2012 were presented before this Court on April 12, 2012 and May 11, 2012 respectively, assailing the notification dated June 17, 2011. While the first one in point of time is at the instance of 8 (eight) petitioners, the other is at the instance of a sole petitioner. The petitioners assert that they were shown as accused in Burdwan Police Station Case No. 50/1970, but ultimately were acquitted by reason of the order under Section 321 of the Cr.P.C. referred to above. It is their claim that over the years they have earned sufficient reputation in their own field and the impugned notification, which has been issued to malign them, smacks of malice. The jurisdiction of the State Government to appoint the Basu Commission has been questioned; particularly when the Mukherjee Commission was appointed to inquire into the same incident and its report has yet not been rejected. The bonafides of the State Government, in ordering an inquiry under the Act after more than 4 (four) decades of the incident, is the other ground on which challenge to the impugned notification is founded. Finally, it is urged that there were no materials on the basis whereof the State Government could have formed an opinion, far less a definite opinion, that an inquiry is warranted having regard to the gravity of the situation.

8. The petitioners’ locus to lay challenge to the impugned notification have been questioned by Mr. Mitra, learned Advocate General and Mr. Bandopadhyay, learned senior advocate representing the State Government. They have reminded the Court of the elementary principle of law that without demonstrable infringement of any legal right, a writ petition would not be maintainable. According to them, the report of the Commission of Inquiry appointed under Section 3 of the Act is recommendatory in nature and thus the petitioners could have no reason to feel aggrieved at this stage. Referring to the pleadings, it has been pointed out that the writ petitions appear to have been filed for protection of the interest of the political party that reigned supreme for 34 (thirty-four) years in this State and the petitioners are not entitled to claim any relief in law on its behalf. If at all the said political party, which is a society registered under the relevant provision of law, felt aggrieved, it could have approached the Court by presenting an independent writ petition.

9. Learned Advocate General advanced an additional argument. Referring to Section 8B of the Act, he contended that it was introduced to operate as a safety valve for protecting the interest of a certain class of persons. If the conduct of any person is required to be inquired into or if the reputation of a person is likely to be prejudicially affected by the inquiry, the statute mandates the Commission to provide reasonable opportunity of hearing to such person and to produce evidence in his defence. It is only after compliance with the procedural safeguard that the Commission may proceed in this behalf. According to him, there cannot be a presumption at this stage that the petitioners’ reputation is likely to be affected if the proceedings were allowed to continue before the Basu Commission. Should the occasion to feel aggrieved arise, the petitioners would be free to respond to the notice that might be issued by the Basu Commission and persuade it not to arrive at any finding likely to affect their reputation. Relying on the decision of the Supreme Court reported in (2003) 8 SCC 361 : State of Bihar v. Lal Krishna Advani, he contended that in the unlikely event of the provisions in Section 8B of the Act not being followed, any observation or finding would be of no effect.

10. I have heard the parties at length on the preliminary objection.

11. No authority is required to emphasize that a writ petition would not be maintainable, if the person approaching the Court cannot satisfy it that his legal right has been or is likely to be infringed. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus, is settled law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. As Mr. Bandopadhyay correctly argued, the petitioners have to satisfy the Court that they are persons aggrieved by the decision of the State Government to appoint the Basu Commission and that at their instance a writ petition would be maintainable.

12. Who is a ‘person aggrieved’ having the locus standi to move a writ petition? Its meaning, the Supreme Court has ruled, must vary according to the facts that are presented before the Court vis- -vis the nature of infringement that is complained. To invoke Article 226, the infringement complained of may be threatened and it is not always necessary that one must wait till the threat is executed.

13. It would be relevant in this connection to quote verbatim what the Supreme Court in Jashbhai Motibhai Desai v. Roshan Kumar, reported in (1976) 1 SCC 671, stated in paragraphs 37 to 39:

“37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) “person aggrieved”; (ii)

“stranger”; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice.

They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.

38. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of “persons aggrieved”. In the grey outer circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be ‘persons aggrieved’.

39. To distinguish such applicants from ‘strangers’, among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person ‘against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something?’ Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words “person aggrieved” is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community. Or is it a statute dealing with private rights of particular individuals.

14. In the circumstances some of the tests evolved by the Supreme Court have to be applied, although they are not to be treated as absolute and ultimate, to ascertain whether the petitioners have the necessary locus to question appointment of the Basu Commission by the Government. Ignoring the unnecessary statements made in the writ petitions, it is clear that the petitioners consider themselves aggrieved by the alleged executive overreach. Their basic contentions, giving rise to the ‘lis’ here, are that (i) there being a report of the Mukherjee Commission holding that the ‘Sainbari’ killings were the mad outburst of a crowd as distinguished from individuals acting in satisfaction of a previous grudge, which the Government has never cared to consider, a second inquiry under the Act in respect of the self-same incident is barred; (ii) there could not have been materials at this distant point of time to form any definite opinion that appointment of the Basu Commission is warranted, after more than 4 (four) decades have passed by in the meantime; and (iii) having been acquitted of the offences (notwithstanding that it was an order under Section 321, Cr.P.C.), and there being no attempt ever to have the said order of acquittal set aside (as a sequel to which it attained finality), the possibility of their reputation being tarnished should the Commission record adverse findings against them (also having the effect of lowering the dignity, prestige and majesty of the judiciary) cannot be ruled out and hence, recourse to the Act could not have been taken to appoint the Basu Commission.

15. In terms of the provisions of Order VII Rule 11(a) of the Code of Civil Procedure (hereafter the CPC), a plaint is liable to be rejected if it does not disclose a cause of action. While considering whether a plaint discloses a cause of action or not, the statements made therein are generally accepted to be correct. If upon acceptance of such statements on face value no cause of action is disclosed to institute a suit, the plaint has to be rejected.

Although provisions of the CPC are not applicable to writ proceedings ex proprio vigore, its principles could be applied as far as practicable. The contention of the respondents that the petitioners do not have the locus standi to present the writ petitions is in essence a plea that they have no right to bring the action for seeking redress. In other words, they have not suffered any legal injury by the impugned State action of appointment of the Basu Commission. Mr. Pal, learned senior counsel for the petitioners, is right in saying that while considering an objection like the present one, which is in the nature of a ‘demurrer’, the Court has to proceed on the basis that whatever is averred in the petition before it is correct. It is true, as contended by Mr. Mitra, that none of the decisions cited by Mr. Pal are on the point of locus standi, but nothing turns on it. The petitioners have pleaded that there were no materials before the Government on the basis whereof there could be a valid formation of opinion that there exists a matter of definite public importance for which appointment of the Basu Commission is warranted. Whether materials were there or not is a question of fact, but the opinion that has been formed on claimed relevant materials, assuming the same exist, cannot be excluded from the horizon of judicial review at the instance of interested persons. To uphold the objection of the State that the petitioners lack the locus standi to invoke the writ jurisdiction of this Court, it has either to be ruled (despite accepting the statements made in the writ petitions as correct) that the petitioners are meddlesome interlopers, or are strangers not having any substantial interest in the subject matter of the ‘lis’. Ordinarily, existence of a ‘lis’ between two parties is the source of a litigation. However, it is well recognised, that ‘lis’ implies the conception of an issue joined between two parties and is neither to be confined to litigation by means of a suit in a court of law nor is a suit necessary to constitute ‘lis’. If the writ petitions were at the instance of persons un-connected in any capacity with the ‘Sainbari’ killings and there is ground to believe that absolutely no reason exists for their conduct being inquired into or their reputation being affected by any findings of the Basu Commission, the objection of locus standi or want of standing would have to be sustained.

In my view, Mr. Mitra very rightly did not venture so far to assure that the conduct of the petitioners would not be inquired into by the Basu Commission or that no finding affecting their reputation would be recorded. There seems to be no doubt that the petitioners were part of the crowd that assembled in Burdwan town on the fateful day, and which was responsible for the mad outburst leading to the unfortunate killings. Although the Mukherjee Commission did not find any individual responsible for the overt acts, one of the terms of reference the Basu Commission is required to answer in terms of the impugned notification is to identify the people involved or responsible for the incident.

What emerges is that so long the possibility of the Basu Commission (i) inquiring into the conduct of the petitioners, and/or (ii) recording adverse findings likely to affect the reputation of the petitioners, is/are not ruled out, and they are made to await notices from the Basu Commission to respond that it has no jurisdiction to inquire into their conduct or record adverse findings affecting their reputation, they have a cause of action to feel aggrieved and are persons having the standing to approach the Court of Writ at this stage for a decision on the contentions noticed above, with a prayer to quash the impugned notification by a writ of certiorari.

16. It was not necessary for the petitioners, as Mr. Mitra argued, to plead that they were involved in the murderous attack on Pranab, Moloy and Jiten for the objection to be overruled. The Government has vehemently argued in support of the action it has taken, giving rise to contentious issues. The petitioners apprehend legal injury being suffered by them, as distinguished from actual legal injury already suffered. They are, thus, not part of the solid central area or the outermost nebulous fringe of the concentric zone envisioned in Jashbhai Motibhai Desai (supra) but definitely part of the prominent part of the grey outer circle as persons likely to suffer legal injury and they are not strangers. The pleadings necessary to constitute a prima facie case for admission of the writ petitions at the instance of the petitioners appear to have been set up. Whether or not the petitioners would be entitled to a decision on the issues of law raised in these proceedings, which the ‘lis’ between the parties has given birth, is a different point altogether and that necessarily has to be reached after the parties, on being called upon, exchange their affidavits. On the basis of what have been argued, I find little hesitation in overruling the preliminary objection. It is ordered accordingly.

17. The writ petitions are admitted. Direction for exchange of affidavits would follow after order is passed on the prayer of the petitioners for grant of interim relief, considering the prima facie merits. List the writ petitions a week after reopening for such purpose. For the present, till next hearing, the interim request made earlier shall continue. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.