MANU/SC/0598/2020

Equivalent/Neutral Citation: 2020(3)AC R2125, 2020(8)ADJ618, 2020(6)BLJ96, 2020(3)C rimes326(SC ), 2020 INSC 499, 2020(9)SC ALE461,
(2020)16SC C 811, 2020 (7-8) SC J 245, [2020]6SC R983

IN THE SUPREME COURT OF INDIA

Criminal Misc. Petition No. 70798/2020 in Writ Petition (Criminal) No. 177 of 2020
(Under Article 32 of the Constitution of India)
Decided On: 19.08.2020
Ghanshyam Upadhyay Vs. State of U.P. and Ors.
Hon'ble Judges/Coram:
S.A. Bobde, C.J.I., A.S. Bopanna and V. Ramasubramanian, JJ.
Counsels:
For Appearing Parties: Tushar Mehta, SG, K.M. Nataraj, ASG, Garima Prashad, Prashant
Singh, Shiv Nath Tilhari, Rajat Nair, Kanu Agrawal, Arvind Kumar Sharma, Aparna Bhat,
Anupama Ngangom, Advs. and Party-in-Person
Case Category:
LETTER PETITION AND PIL MATTER - WRIT PETITIONS (CRIMINAL) AND WRIT
PETITIONS FILED AS PIL PERTAINING TO CRIMINAL INVESTIGATIONS/PROSECUTION
Case Note:
Constitution - Appointment of Judicial Commission - Commission of Inquiries
Act, 1951 - Investigation with regard to destruction of residential building
and other properties of Accused-Vikas Dubey who later was killed in alleged
encounter - Petitioner sought scrapping of Judicial Commission citing alleged
conflict of interest and likely bias on the part of the Chairman and the
Member - Plea sought on the basis of news published Article - Hence, the
present petition
Facts:
The Petitioner sought issuance of Writ of Mandamus and to direct Respondent
Nos. 1 to 3 to initiate action with regard to the destruction of residential
building and other properties of Accused-Vikas Dubey and to safeguard the
life of the Accused. Before the petition was taken up for consideration certain
other developments had occurred and said Vikas Dubey was killed by the
police in an alleged encounter. Thereafter other writ petitions were also filed
seeking for an appropriate enquiry and all were tagged for consideration
together. The State Government in its reply indicated that the Government
having taken serious cognizance of all the events, apart from constituting a
Special Investigation Team had also constituted a Commission of Inquiry
under the Commission of Inquiries Act, 1951 headed by a former Judge of
Allahabad High Court. The Petitioner sought that the Judicial Commission
constituted by the State be scrapped and a SIT as sought by the Petitioner be
constituted by this Court to carry out investigation on all issues raised by the
Petitioner. The said prayer was made on the ground of alleged conflict of
interest and likely bias on the part of the Chairman and the Member. The
Petitioner while making such allegation relied upon an Article published in
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"The Wire" dated 29.07.2020.
Held, while dismissing the petition:
The entire basis for making the allegations as contained in the miscellaneous
petition was an Article relied on by the Petitioner said to have been published
in the newspaper. There is no other material on record to confirm the truth or
otherwise of the statement made in the newspaper. Court will have to be very
circumspect while accepting such contentions based only on certain
newspaper reports. In a series of decisions, it has repeatedly been held that
the newspaper item without any further proof is of no evidentiary value. [6]
In the above backdrop, in the instant case it is to be noticed that the
Chairman and a Member of the Commission had held high Constitutional
positions and while making allegations the Petitioner has based his claim
only on the newspaper report and the manner in which the averments are
made in the application is unacceptable. [8]
Here is an Inquiry Commission constituted under the Commissions of Inquiry
Act, whose functions and role are by now well defined. A commission
constituted under the Commissions of Inquiry Act, 1952 is empowered merely
to investigate, record its findings and make its recommendations. These
recommendations are not enforceable proprio vigore. [10]
The Petitioner herein is an advocate who practices law in Mumbai,
Maharashtra and is in no way connected to the incident in question which
took place in U.P. However, the petition filed by him in public interest was
accepted and the Commission of Inquiry consisting of persons who had held
high position has been constituted. The enquiry held would be in public
domain and the Petitioner has already been granted the liberty of
participating therein. The report of the enquiry is ordered to be filed in the
petitions which were filed before this Court. Therefore, there would be
sufficient safeguard to the manner in which the inquiry would be held. The
Petitioner has been raising unnecessary apprehensions and repeated
applications are being filed which in fact is hampering the process of inquiry.
[15]
The instant petition/application held to be without any merit and the same
was accordingly dismissed. [16]

ORDER
1. The Petitioner in this Criminal Miscellaneous Petition/application is the Petitioner in
W.P (Crl.) No. 177/2020. The said writ petition was filed Under Article 32 of the
Constitution of India, in the nature of public interest seeking for issue of Writ of
Mandamus and direct the Respondent Nos. 1 to 3 in the writ petition to initiate action
with regard to the destruction of residential building and other properties of Accused-
Vikas Dubey and to safeguard the life of the Accused. Before the petition was taken up
for consideration certain other developments had occurred, inasmuch as the said Vikas
Dubey was killed by the police in an alleged encounter. Along with the said writ
petition, certain other writ petitions which were also filed in public interest seeking for
an appropriate enquiry in that regard were tagged. All the related writ petitions were
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taken up for consideration together. The State Government in a reply filed to the said
writ petitions, apart from referring to the other aspects of the matter had also indicated
that the Government having taken serious cognizance of all the events, apart from
constituting a Special Investigation Team had also constituted a Commission of Inquiry
under the Commission of Inquiries Act, 1951 headed by a former Judge of Allahabad
High Court. In that regard it is to be noted that Shri Justice Shashikant Agrawal, a
former Judge had been appointed.
2. In the course of the proceedings before this Court, based on a suggestion made by
this Court, the State Government had undertaken the exercise to expand the
composition of the Commission. Accordingly, in addition to the former High Court Judge
who had been appointed the State Government suggested the name of Dr. Justice B.S.
Chauhan, a former Judge of this Court to be the Chairman and Mr. K.L. Gupta, IPS,
Former Director General of Police to be a Member. This Court having considered it
appropriate had through the order dated 22.07.2020 accepted the constitution of the
Commission of Inquiry in the said manner and the writ petition was directed to be listed
along with the report of the Commission. The Petitioners were also granted the liberty
of applying to the Inquiry Commission to be heard in the matter.
3 . When this is the position the instant criminal miscellaneous petition is filed by the
Petitioner seeking that the Judicial Commission constituted by the State be scrapped
and a SIT as sought by the Petitioner be constituted by this Court to carry out
investigation on all issues raised by the Petitioner. The said prayer is made by the
Petitioner alleging conflict of interest and likely bias on the part of the Chairman, Dr.
Justice B.S. Chauhan and Shri K.L. Gupta, the Member. The Petitioner in that regard has
relied upon an Article published in "The Wire" dated 29.07.2020.
4. We have heard the Petitioner-in-person and perused the petition papers.
5 . At the outset it is necessary to notice that the Petitioner herein had filed the
applications in I.A. No. 68207/2020 and I.A. No. 67940/2020 after the constitution of
the Inquiry Commission raising certain objections with regard to Shri K.L. Gupta being
the Member of the Commission since according to the Petitioner he had made certain
comments in favour of the police in the interview given to the media. This Court having
considered the same and on not finding it objectionable, dismissed the application
through the order dated 28.07.2020 holding the application to be devoid of merits.
Despite the same, the very same contentions are urged in the instant application as well
and has also raised an additional contention that the said Shri K.L. Gupta is related to
Shri Mohit Agarwal, the IG of Kanpur Zone. Further, objection is raised to the
continuation of Dr. Justice B.S. Chauhan as the Chairman of the Commission since the
news report relied on by the Petitioner states that his brother and relative are legislators
from the Bhartiya Janata Party which runs the Government in Uttar Pradesh.
6 . As noted, the entire basis for making the allegations as contained in the
miscellaneous petition is an Article relied on by the Petitioner said to have been
published in the newspaper. There is no other material on record to confirm the truth or
otherwise of the statement made in the newspaper. In our view this Court will have to
be very circumspect while accepting such contentions based only on certain newspaper
reports. This Court in a series of decisions has repeatedly held that the newspaper item
without any further proof is of no evidentiary value. The said principle laid down has
thereafter been taken note in several public interest litigations to reject the allegations
contained in the petition supported by newspaper report. It would be appropriate to
notice the decision in the case of Kushum Lata v. Union of India and Ors.

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 MANU/SC/8225/2006 : (2006) 6 SCC 180 wherein it is observed thus,".... It is also
noticed that the petitions are based on newspaper reports without any attempt to verify
their authenticity. As observed by this Court in several cases, newspaper reports do not
constitute evidence. A petition based on unconfirmed news reports, without verifying
their authenticity should not normally be entertained. As noted above, such petitions do
not provide any basis for verifying the correctness of statements made and information
given in the petition."
7. This Court in the case of Rohit Pandey v. Union of India MANU/SC/2853/2005 :
(2005) 13 SCC 702 while considering the petition purporting to be in public interest
filed by a Member of the Legal Fraternity had come down heavily on the Petitioner since
the said petition was based only on two newspaper reports without further verification.
8. In the above backdrop, in the instant case it is to be noticed that the Chairman and a
Member of the Commission had held high Constitutional positions and while making
allegations the Petitioner has based his claim only on the newspaper report and the
manner in which the averments are made in the application is unacceptable.
9. In any case, the allegation that the brother of the chairman of the Commission is a
legislator belonging to or supporting the party in power and that the member of the
Commission is related to the IG of Police (Kanpur Range) are not sufficient to come to
the conclusion that it would lead to bias or conflict of interest since there is no
indication whatsoever as to the nature of influence such of those relatives would be able
to exert and as to whether they are in a dominant position.
1 0 . It must be remembered that we are dealing here with an Inquiry Commission
constituted under the Commissions of Inquiry Act, whose functions and role are by now
well defined. As held by the Constitution Bench in Ram Krishna Dalmia v. Justice
S.R. Tendolkar, MANU/SC/0024/1958 : 1959 SCR 279, a commission constituted
under the Commissions of Inquiry Act, 1952 is empowered merely to investigate, record
its findings and make its recommendations. These recommendations are not enforceable
proprio vigore. The view taken in Ram Krishna Dalmia, was reinforced by a larger
bench in State of Karnataka v. Union of India, MANU/SC/0144/1977 : (1977) 4
SCC 608. In fact, this Court went in Sham Kant v. State of Maharashtra,
MANU/SC/0361/1992 : 1992 Suppl. (2) SCC 521, to theextent of holding that the
findings of the Inquiry Commission are not binding on the Court, while dealing with an
appeal arising out of conviction and sentence of a police officer. The police officer who
was the Appellant before this Court in the said case sought to rely upon the findings of
the Inquiry Commission that the victim of custodial violence could have sustained
injuries prior to his arrest. But this Court refused to rely upon the findings of the
Inquiry Commission to overturn the conviction of the police officer.
1 1 . I n K. Vijaya Bhaskar Reddy v. Government of Andhra Pradesh
MANU/AP/0012/1996 : AIR 1996 AP 62, a Division Bench of the Andhra Pradesh High
Court had an occasion to deal with the challenge to the appointment of a one-man
Commission of Inquiry under the Commissions of Inquiry Act, 1952. One of the grounds
of challenge was bias on the part of the appointee. After pointing out that bias by
interest which disqualifies a Judge, may fall into two broad classes namely, (i) bias
arising out of pecuniary interest, and (ii) bias arising out of personal interest in the
outcome, on account of the Judge's relationship with one of the parties, the Division
Bench of the Andhra Pradesh High Court quoted Massey from his Treatise on
Administrative Law to the following effect: "personal bias arises from a certain
relationship equation between the deciding authority and the parties which incline him

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unfavourably or otherwise on the side of one of the parties before him".
12. Though a contention was raised in K. Vijaya Bhaskar Reddy that the principle
has no application to the proceedings before an Inquiry Commission, which are
basically inquisitorial and not judicial or quasi-judicial or adversarial, the Division
Bench of the Andhra Pradesh High Court held that the duty to act fairly and impartially
flowed out of the principles of natural justice. Therefore, the Andhra Pradesh High Court
upheld the right of the Petitioner therein to raise the plea of bias. However, the Court
held that to sustain a plea of reasonable apprehension of bias, (i) there must be cogent,
uncontroverted and undisputed material, and (ii) the court cannot go by vague,
whimsical and capricious suspicion. Applying these principles, the Andhra Pradesh High
Court rejected the challenge made by a former Chief Minister of the state, to the
appointment of a retired Judge as one-man Commission to inquire into certain alleged
irregularities committed by him while in office.
13. Thus, even in a case where the Petitioner before the Court was a person against
whom the Commission of Inquiry was constituted, the Court applied strict standards, for
testing the allegation of personal bias against the Inquiry Commission.
1 4 . In the case on hand, the Petitioner is a lawyer by profession who practices in
Mumbai and has come up by way of Public Interest Litigation. Therefore, the allegations
of bias made by him against the members of the Commission merely on the basis of
newspaper reports and nothing more, are liable to be rejected outright.
15. The Petitioner has relied on the decision of this Court in the case of Ranjit Thakur
v. Union of India and Ors. MANU/SC/0691/1987 : (1987) 4 SCC 611 to contend that
this Court held that the Likelihood of bias in the mind of the party would be sufficient to
complain. The facts in the said case led to such conclusion inasmuch as the nature of
involvement of Respondent No. 4 in punishing the Appellant in that case and thereafter
participating lead to bias and that position was accepted. The facts involved herein are
entirely different. The proceedings herein are not an inter se determination of legal
issues between the parties but a fact-finding exercise. The Petitioner herein is an
advocate who practices law in Mumbai, Maharashtra and is in no way connected to the
incident in question which took place in U.P. However, the petition filed by him in
public interest was accepted and the Commission of Inquiry consisting of persons who
had held high position has been constituted. The enquiry held would be in public
domain and the Petitioner has already been granted the liberty of participating therein.
The report of the enquiry is ordered to be filed in the petitions which were filed before
this Court. Therefore, there would be sufficient safeguard to the manner in which the
inquiry would be held. We find that the Petitioner has been raising unnecessary
apprehensions and repeated applications are being filed which in fact is hampering the
process of inquiry.
1 6 . For all the aforestated reasons we are of the opinion that the instant
petition/application is without any merit and the same is accordingly dismissed.
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