Suran Singh And Another vs J&K State Human Rights Comm. & ...
2021 Latest Caselaw 1318 j&K

                                                               Sr. No. 106

             HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU


                                                        OWP No. 944/2007
                                                        IA 1369/2007
                                                        IA 1442/2007

Suran Singh and another
                                                               .... Petitioner(s)

                             Through:- Mr. Sunil Sethi, Sr. Advocate with
                                       Mr. Navyug Sethi, Advocate

             v/s

J&K State Human Rights Comm. & others
                                                             ..... Respondent(s)

                            Through:- Mr.

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                 ORDER

1. Through the medium of the instant petition filed under Article 226

of the Constitution of India, petitioners on the foundation of the case set up,

implores for the following reliefs:-

"a) `Writ of certiorari quashing judgment passed by respondent No. 1 on 17.10.2007 in File No. SHRC/ 277/ 2007.

b) Any other writ, orders or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case may also be issued in favour of the petitioners as against the respondents."

2. The background facts enumerated in the petition under the shade

of which the aforesaid reliefs have been claimed by the petitioners are that the 2 OWP 944/2007

respondent No. 2 was a suspect in a bomb blast in FIR No. 72/2007 under

Sections 302, 307 RPC and 3 JKPAA, Act and was arrested by the Police

Station, Surankote on 10.06.2007 and that since there was no arrangement for

interrogation for females in Police Station, so as the suspect was sent for

interrogation to Center (JIC), Jammu for further investigation, where after she

was released under Section 169 Cr.P.C.

3. According to the petitioners, respondent No. 2 in order to malign

the reputation of the petitioner No. 1 being a Police Officer raised false and

frivolous allegations of rape against the petitioners on intervening night of

7th/8th June, 2007, claiming to have been arrested on 6 th June, 2007 instead of

10th June, 2007.

4. A complaint is stated to have been filed by respondent No. 2

before the Judicial Magistrate 1st Class, Surankote (for brevity „Magistrate)

who is stated to have directed holding of an enquiry in the matter by the

Senior Superintendent of Police and where under in the said inquiry, the

allegations leveled by the complainant/respondent No. 2 were found to be

false and frivolous.

5. According to the petitioners, the respondent No. 2 instead of

taking any further action upon the closure report of the inquiry conducted by

Senior Superintendent of Police chose to file a complaint before respondent

No.1, wherein Inspector General of Police, came to be directed to hold

an enquiry into the matter, and after holding the same, Inspector General of

Police observed that no offence was established against the petitioners and

the allegations leveled against the petitioners were found to be false, frivolous

and actuated by mala fide.

3 OWP 944/2007

6. According to the petitioners, respondent No. 1 instead of

accepting the enquiry report, however, forwarded the same to the concerned

Police Station for registration of an FIR under Section 376 RPC against the

petitioners, in terms of order dated 17.10.2007 impugned in the instant

petition.

(Grounds of challenge)

7. The impugned order is being challenged in the instant petition

inter alia on the following grounds:-

a) That as the matter had already been reported to the Magistrate under the Code of Criminal Procedure, who had directed holding of inquiry under Section 202 Cr.P.C, which inquiry had already exonerated the petitioners, no jurisdiction was vested with the respondent No. 1 to look into the allegations or to act as a court of appeal.

b) That respondent no. 1, as per the provisions of Jammu and Kashmir Protection of State Human Rights, Act 1997 has to act on the inquiry which had been conducted, as provided by Section 19 of the Act and because in the instant case the inquiry has not found anything against the petitioners, there was no justification with respondent no. 1 to have directed registration of the FIR against the petitioners.

c) That respondent no. 1 has further erred in passing the judgment impugned as the same is violative of Section 17 of the Act, which provides that the person who is likely to be prejudicially affected by the order is required to be heard before passing of such order. Section 17, for perusal of this Hon'ble Court, is reproduced as under:-

"17. Persons likely to be prejudicially affected to be heard:

4 OWP 944/2007

If at any stage of the inquiry the Commission:

a) Considers it necessary to inquire into the conduct of any person: or

b) Is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, It shall give to the person a reasonable opportunity of being heard in the inquiry and to produce the evidence in his defence; Provided that nothing in this Section shall apply where credit of a witness is being impeached."

8. Despite service, reply has not been filed by either of the

respondents.

Heard learned counsel for the petitioners and perused the

record.

9. Without adverting to the factual issues enumerated in the case set

up by the petitioners, it becomes imperative to have a discourse to the

question of competence and jurisdiction of respondent No. 1 herein for

entertaining the complaint of respondent No.2 and adjudication upon the

same.

10. Before dealing with the aforesaid question, it would be

advantageous and appropriate to refer to the following provisions of Jammu

and Kashmir Protection of State Human Rights Act, 1997 ( for brevity „the

Act‟) being relevant and germane to the controversy: -

Section 2 (c) of the Act defines Human Rights as under: -

5 OWP 944/2007

"2 (c)"Human Rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the International Covenants and enforceable by Courts in India:"

Section 3 provides for Constitution of a State Human Rights Commission and reads as under: -

(1) "The Government shall constitute a body to be known as the State Human rights commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act.

(2) The Commission shall consist of-

(a) A Chairperson who has been a Judge of the High Court;

(b) One Member who is, or has been, a District Judge;

(c) three members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to Human rights.

(3) There shall be a Secretary who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission as it may delegate to him.

(4) The headquarters of the Commission shall be at Srinagar.

(5) The Commission shall have sub-offices at Jammu, Doda and Rajouri; Provided that the Government may establish sub-offices at other places in the State.

(6) A member of the Commission shall hold sittings of the Commission at each sub-office.

6 OWP 944/2007

Section 13 of the Act provides for functions of the Commission and reads as under: -

13."Functions of the Commission: The Commission shall perform all or any of the following functions, namely: -

(a) Inquire, suo moto or on a petition presented to it by a victim or any person on his behalf, into complaint of:

(i) Violation of human rights or abetment thereof; or

(ii) Negligence in the prevention of such violation, by a public servant;

(b) Intervene in any proceeding involving any allegation or violation of human rights pending before a Court with the approval of such Court;

(c) Visit, under intimation to the Government, any jail or any other institution under the control of the Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereof;

(d) Review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommended measures for their effective implementation;

(e) Review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

(f) Undertake and promote research in the field of human rights;

(g) Spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through 7 OWP 944/2007

publications, the media, seminars and other available means;

(h) Encourage the efforts of non-governmental organizations and institutions working in the field of human rights;

(i) Such other functions as it may consider necessary for the promotion of human rights."

Section 24 of the Act provides for matters not subject to jurisdiction of the Commission and reads as under:

24. "Matters not subject to jurisdiction of the Commission- (1) The Commission shall not inquire into any matter which is pending before any other Commission duly constituted under any law for the time being in force.

(2) The commission shall not inquire any complaint relating to a matter not falling within its jurisdiction but may forward the same to a forum having jurisdiction to entertain the same."

11. Further reference to Regulation 14 of Jammu and Kashmir State

Human Rights Commission (Procedure) Regulations 2011 (hereinafter for

short „the Regulation‟) framed under section 10 of the Act being relevant

herein would also be appropriate and same reads as under:

"14.Complaints not entertainable- The Commission may dismiss in limini complaints of the following nature; The allegations in the complaint do not make out a case of

(a) human rights violations;

(b) Trivial or frivolous and illegible complaints;

(c) Vague anonymous/ unsigned, or pseudonymous

(d) Civil disputes such as contractual obligations, matrimonial matters, property rights and other types of cases which are covered by civil/ criminal law;

8 OWP 944/2007

(e) Pure and simple service matters;

(f) Allegations not against a public servant;

(g) Industrial/ labour disputes;

(h) Matters sub-judice before any Court/ Tribunal/ Commission;

(i) Matters outside the purview of the State Commission;

(j) Complaints barred by laws;

(k) Matter fully covered by a judicial verdict/ decision of the Commission."

12. A conjoint reading of the aforesaid provisions of the Act and the

Regulation suggest that the Commission is a statutory body, creation of a

statute empowered and authorized to discharge its functions and exercise its

powers and jurisdiction within the parameters of the Act and Regulations

thereunder. The Act and the Regulations further provides for a mode and

mechanism for the Commission to be followed and adhered to qua the

complaints filed before it.

13. Section 24 (2) of the Act forbids the Commission from inquiring

into any complaint not falling within its jurisdiction. Whereas Regulation 14

of the Regulations mandates the Commission to dismiss in limini, the

complaints enumerated therein including the one involving civil dispute such

as contractual obligations, matrimonial matters, property rights and other

types of cases, which are covered by civil/ criminal law.

14. Keeping in mind the legal position, the grievance projected

before the Commission by the complainant, admittedly related to the

allegations of respondent No. 2 herein leveled against the petitioners for

having committed an offence of rape during intervening night of 7 th/8th June,

2007, claiming that she had been arrested by the Police on 6th June, 2007.

9 OWP 944/2007

15. Perusal of the record tends to show that upon filing of the

complaint by respondent No. 2 before the Magistrate an inquiry under Section

202 Cr.P.C was ordered to be held by the Senior Superintendent of Police who

upon holding of the same found the allegations leveled by the respondent No.

2 false and frivolous against the petitioners.

16. Admittedly, upon filing of the said inquiry report, the respondent

No. 2 did not question the same or instituted any proceedings thereof before a

competent Court of law. The proceedings where under the inquiry have been

ordered by the Magistrate had been abandoned by respondent No. 2 and

instead she filed the complaint in question before the respondent No. 1, which

also directed holding of an inquiry by Inspector General of Police, who even

found the allegations leveled by the respondent No. 2 against the petitioners

false and frivolous. The Commission despite the report of two inquiries

instead proceeded with the complaint of the respondent No. 2 and passed the

impugned order. The impugned order admittedly, has been passed without

affording an opportunity of being heard to the petitioners, in disregard to the

provisions of Section 17 of the Act, so much so the direction for registration

of FIR runs in conflict with the provisions of the Act, where under only a

recommendation can be made to the Government.

17. The Commission in view of above has grossly erred while

entertaining the complaint of the respondent No. 2 against the petitioners

purportedly on the premise of violation of a human right wrongly assuming

jurisdiction thereof under the Act of 1997 read with Regulation of 2011.

18. What emerges from above discussion and analysis of the petition

is that the Commission has acted in breach and violation of the provisions of 10 OWP 944/2007

the Act of 1997 and Regulation 2011 and also the acts of the Commission ex-

facie runs contrary to the settled position of law laid down by the Apex Court

in case titled as State of MP vs. Centre for Environment, reported in 2020

SCC online 687, and Competent Authority vs. Barangore Jute Factory &

Others, wherein it has been envisaged that when a statute requires a thing to

be done in a particular manner, it is to be done only in that manner alone.

19. For all what has been observed, considered and analyzed

hereinabove, there is merit in the instant petition which, accordingly, is

allowed and the impugned order dated 17.10.2007 passed in File No.

SHRC/277/2007 by respondent No. 1 is hereby quashed, as a corollary

whereof, the complaint instituted by the respondent No, 2 against the

petitioners shall stand dismissed.

(Javed Iqbal Wani) Judge

Jammu 21.10.2021 Bir Whether the order is speaking: Yes Whether the order is reportable: Yes 11 OWP 944/2007