Kerala High Court
Hillari Zacharia vs The Chief Election Commissioner on 30 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
WP(C) NO. OF 2021 (F.No.9038553 of 2021)
PETITIONERS:
1 HILLARI ZACHARIA, S/O LATE ZACHARIA, AGED 68 YEARS, NANAMBU VILA VADAKKATHIL,
MANGAD P O, KOLLAM 691015, KEERALA
2 LAW AID, NO.424/1985 REGISTERED UNDER TRAVANCORE COCHIN CHARITABLE AND
ENDOWMENT SOCIETIES ACT, OFFICE OF LAW LINK, GANGA COMPLEX, EAST OF CIVIL STATION,
KOLLAM 691 013, REPRESENTED BY ITS SECRETARY, HILLARI ZACHARIA, S/O LATE ZACHARIA,
AGED 68 YEARS, NANAMBU VILA VADAKKATHIL, MANGAD P O, KOLLAM 691 015, KERALA.
BY ADV R.SIVADASAN
RESPONDENTS:
1 THE CHIEF ELECTION COMMISSIONER THROUGH SECRETARY, ELECTION COMMISSION OF INDIA,
NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI 110 001.
2 UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF LAW AND JUSTICE, DEPARTMENT
OF LEGAL AFFAIRS, SHASTRI BHAVAN, RAJENDRA PRASAD MARG, NEW DELHI 110 001.
3 ALL INDIA CONGRESS COMMITTEE (AICC) HAVING ITS HEAD OFFICE AT 24, AKBAR ROAD, NEW
DELHI 110 001 REPRESENTED BY ITS GENERAL SECRETARY, K.C.VENUGOPAL
4 MRS.SONIA GANDHI, ACTING PRESIDENT, ALL INDIA CONGRESS COMMITTEE, 24, AKBAR ROAD,
NEW DELHI 110 001.
5 MR.RAHUL GANDHI, FORMER PRESIDENT, ALL INDIA CONGRESS COMMITTEE, 24, AKBAR ROAD,
NEW DELHI 110 001.
6 KERALA PRADESH CONGRESS COMMITTEE, INDIRA BHAVAN, THRIVUANANTHAPURAM, PIN 695
010, REPRESENTED BY ITS PRESIDENT, K.SUDHAKARAN.
7 V.D.SATHEESAN, MEMBER AND OPPOSITION LEADER OF KERALA LEGISLATIVE ASSEEMBLY,
THIRUVANANTHAPURAM -695 010.
8 K.SUDHAKARAN, MEMBER OF PARLIAMENT & PRESIDENT KPCC, INDIRA BHAVAN,
THIRUVANANTHAPURAM 695 010.
9 DISTRICT COLLECTOR, KOLLAM DISTRICT (IMPLEADED AS ADDITIONAL RESPONDENT VIDE
JUDGMENT DATED 30.9.2021 IN WP(C) OF 2021 (F.No.9038553 of 2021)
BY ADV SHRI.DEEPU LAL MOHAN, SC, ELECTION COMMISSION OF INDIA
SRI.P.VIJAYAKUMAR, ASG
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
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"C.R"
JUDGMENT
Dated this the 30th September, 2021
S.MANIKUMAR, C.J.
Mr. Hillari Zacharia, first petitioner in this writ petition, has claimed
to be a dedicated member of the All India Congress Committee (AICC)/3 rd
respondent. LAW AID, Office of Law Link, Ganga Complex, Kollam,
represented by its Secretary, Mr. Hillari Zacharia, second petitioner, is
stated to be a society registered under Travancore Cochin Charitable and
Endowment Societies Act, 1955, as No.424/1985.
2. Petitioners have approached this Court for a direction to the 1 st
respondent/Election Commission of India, to give a direction to
respondents, to conduct election from booth level to the level of AICC
setting a time frame. Petitioners have claimed that the direction to be given
by this Court should be statutory, which prayer requires to be considered in
the light of the statute, if any, warranting the Election Commission to
conduct election.
3. Another relief sought for is a direction to the respondents to
conduct elections to the varied posts in the third respondent/All India
Congress Committee (AICC) from its lowest level of booth onwards.
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4. Petitioners have also sought for a writ of prohibition restraining
the respondents from filling up the post of AICC President and from
reshuffling the Kerala Pradesh Congress Committee with nominated hands,
without conducting elections from the lowest level of booth onwards.
5. Petitioners have referred to the filing of two writ petitions, for
similar reliefs, i.e, W.P.(C)Nos.32519 of 2017 and 39436 of 2017.
6. A detailed statement has been filed on behalf of the Chief Election
Commissioner/first respondent stating that the writ petition is not
maintainable. It is stated therein that political parties are not amenable to
the jurisdiction of this Court under Article 226 of the Constitution of India.
7. A writ petition to conduct internal election, within a political party,
is not maintainable. The grievance, if any, regarding the same can be raised
within the organizational structure or before the appropriate civil forum.
8. That apart, filing of another W.P.(C) No.24466 of 2019 and dismissal
of the same on 18.09.2019, on the basis of a judgment of this Court in Anil
Thomas v. Indian National Congress and Others reported in ILR 2018 (2)
Kerala 36, has also been averred.
9. Relevant portions of the counter affidavit read as under:
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"4. The question as to whether a Political Party registered
under Section 29A of the Representation of People Act, 1951 is
amenable to the Writ jurisdiction of this Hon'ble Court under Article
226 of the Constitution of India came up for consideration before this
Hon'ble Court in Anil Thomas v. Indian National Congress and others
reported in (ILR 2018 (2) Kerala 36) and this Hon'ble Court has held
that Writ Petition under Article 226 of the Constitution of India is not
maintainable as against a Political Party, especially in the matter of
regulation of their internal affairs. Further, relying on the dictum of
the Hon'ble Supreme Court in Indian National Congress (I) v.
Institute of Social Welfare and Others reported in (2002) 5 SCC 685,
this Hon'ble Court has held that the Election Commission cannot also
regulate the inner party functioning.
5. Further, the Hon'ble Madras High Court has in the Judgment
dated 21-12-2018 in B.Ramkumar Adityan v. The Chief Election
Commissioner and others held that the Political Parties even if it is
registered under Section 29A of the Representation of People Act
1951 do not come under the jurisdiction of Article 226 of the
Constitution of India and that no Writ Petition can lie concerning the
internal affairs of the political party. Further, it is also held therein
that neither Article 324 of the Constitution of India nor Section 29A
of the Representation of the People Act, 1951, prescribe any duty cast
upon the Election Commission to oversee the in-house function of
any political party, and, if for any reason, the Election Commission is
cast upon with such duty to monitor the in-house activity of any
registered political party the essence of Article 324 and 329A of the
Constitution of India would be watered down.
6. The Hon'ble Bombay High Court (Nagpur Bench) in the
Judgment dated 16-06-2020 in Writ Petition No.1151/2020 in
Harshwardhan B. Godghate v. Election Commission of India, through
Election Commissioner, New Delhi and others while considering the
question whether a writ could be issued declaring the organizational
election of a registered political party as null and void and whether
directions could be issued to the Election Commission of India to
appoint returning officer for conduct of organizational election of
registered political party, has held that under Article 324 of the
Constitution of India, the Election Commission is concerned only
with the superintendence, direction, control as well as conduct of
elections to the Parliament and to the State Legislatures and that the
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Election Commission is not concerned with the organizational
election of any political party.
7. It is further submitted that earlier, the writ petitioner
himself had filed Writ Petition as W.P(C)No.24466/2019, seeking the
following reliefs:
a) To issue a writ of prohibition restraining the respondents 3
onwards from filling up the post of AICC President with
nominated hand and from reshuffling the Kerala Pradesh
Congress Committee with nominated hands without
conducting elections from the lowest booth onwards.
b) To issue a writ of mandamus or a writ, order or direction
directing respondents 3 onwards to conduct elections to
the varied posts in the 3 rd respondent party from its lowest
level of booth onwards with a similar direction to the 1 st
respondent to ensure the conduct of such elections against
a fixed time frame:
c) To grant such other relief or reliefs which this Hon'ble
Court may deem fit and proper to grant in the
circumstances of the case.
8. However, relying on the Judgment of this Hon'ble Court in
Anil Thomas's case (supra), when it was pointed out by this
Respondent that a Writ Petition on conduct of internal election
within a political party may not be maintainable and that the
grievance, if any, should be raised within the organizational
structure or before the appropriate civil forum, the Writ Petitioner
sought liberty to withdraw the Writ Petition and as per Judgment
dated 18-09-2019, this Hon'ble Court dismissed the said Writ Petition
as 'not pressed'; that too, without granting any liberty to file a fresh
Writ Petition. Inspite of the same, the Petitioner has again chosen to
file the present Writ Petition, without even mentioning about the
earlier dismissal of W.P.(C)No.24466/2019 as per Judgment dated 18-
09-2019.
In view of the above, it is submitted that the above Writ
Petition is not maintainable and the reliefs sought for in the Writ
Petition cannot be granted by this Hon'ble Court under Article 226 of
the Constitution of India. Therefore, it is prayed that the Writ
Petition may be rejected as not maintainable."
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10. Heard Mr. R. Sivadasan, learned counsel for the writ petitioners, and
perused the material on record.
11. Apart from the averments, for the reliefs sought for, at paragraph 17
of the Statement of Facts, the petitioners have stated that the first petitioner
has filed W.P.(C) No.32519 of 2017, wherein a memo dated 06.12.2017 was filed
to withdraw the said writ petition, without prejudice to the filing of a fresh
writ petition, and based on the said memo, W.P.(C) No.32519 of 2017 was
dismissed. Thereafter, a fresh W.P.(C) No.39436 of 2017 was filed on the very
same day, for the very same reliefs, and that the same was also dismissed on
07.12.2017, on the grounds that sanction was given only for withdrawing the
earlier writ petition and not filing a fresh writ petition.
12. However, from the Statement of Facts, it could be deduced that
Mr. Hillari Zacharia, the first petitioner herein, has filed another writ
petition, viz., W.P.(C) No.24466 of 2019, and when the attention of Mr. R.
Sivadasan, learned counsel for the petitioner, was invited to a decision of this
Court in Anil Thomas v. Indian National Congress and Others reported in
2018 KHC 3167, he has sought for permission, to withdraw W.P.(C) No.24466 of
2019. Therefore, on 18.09.2019, a Hon'ble Division Bench of this Court has
dismissed the writ petition as not pressed.
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13. Along with the present writ petition, the petitioners have filed an
affidavit of declaration dated 7.9.2021 wherein, they have stated as under:
"We have not filed any other Petition earlier seeking similar
and identical reliefs in respect of the same subject matter
before this Hon'ble Court or any other court. "
14. From the above, we could deduce that apparently, three things are
clear, viz., (i) petitioners have suppressed the filing of a previous Writ Petition
No.24466 of 2019, in this writ petition, and the orders passed on 18.09.2021; (ii)
they have filed a false affidavit dated 7.9.2021; and (iii) they have abused the
process of Court.
15. On the aspect of public interest litigation and the duty cast upon
the Courts and public interest litigants, we deem it fit to consider the
following decisions:
(i) In Guruvayur Devaswom Managing Committee & Anr. v. C.K.Rajan &
Others [(2003) 7 SCC 546], the Hon'ble Apex Court held as under:
"(i) The Court in exercise of powers under Article 32 and Article 226 of
the Constitution of India can entertain a petition filed by any interested
person in the welfare of the people who is in a disadvantaged position
and, thus, not in a position to knock the doors of the Court.
The Court is constitutionally bound to protect the fundamental
rights of such disadvantaged people so as to direct the State to fulfill its
constitutional promises. [See S.P. Gupta v. Union of India, People's
Union for Democratic Rights v. Union of India (1982) 2 SCC 494,
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Bandhua Mukti Morcha v. Union of India and Others (1984) 3 SCC
161 and Janata Dal v. H.S.Chowdhary (1992) 4 SCC 305)]
(ii) Issues of public importance, enforcement of fundamental rights of a
large number of the public vis-a-vis the constitutional duties and
functions of the State, if raised, the Court treats a letter or a telegram as
a public interest litigation upon relaxing procedural laws as also the law
relating to pleadings. [See Charles Sobraj v. Supdt., Central Jail,
Tihar, New Delhi (1978) 4 SCC 104 and Hussainara Khatoon and
Others v. Home Secretary, State of Bihar (1980) 1 SCC 81).
(iii) Whenever injustice is meted out to a large number of people, the
Court will not hesitate in stepping in. Articles 14 and 21 of the
Constitution of India as well as the International Conventions on Human
Rights provide for reasonable and fair trial. In Mrs. Maneka Sanjay
Gandhi v. Rani Jethmalani (AIR 1979 SCC 468), it was held:
"2. Assurance of a fair trial is the first imperative of the
dispensation of justice and the central criterion for the court
to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or easy
availability of legal services or like mini-grievances.
Something more substantial, more compelling, more
imperilling, from the point of view of public justice and its
attendant environment, is necessitous if the court is to
exercise its power of transfer. This is the cardinal principle
although the circumstances may be myriad and vary from
case to case. We have to test the petitioner's grounds on this
touchstone bearing in mind the rule that normally the
complainant has the right to choose any court having
jurisdiction and the accused cannot dictate where the case
against him should be tried. Even so, the process of justice
should not harass the parties and from that angle the court
may weigh the circumstances." (See also Dwarka Prasad
Agarwal (D) By Lrs. and Anr. v. B.D. Agarwal and Ors. (2003) 5
SCALE 138).
(iv) The common rule of locus standi is relaxed so as to enable the Court
to look into the grievances complained on behalf of the poor, the
depraved (sic), the illiterate and the disabled who cannot vindicate the
legal wrong or legal injury caused to them for any violation of any
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constitutional or legal right. [See Fertilizer Corpn. Kamgar Union (Regd.) v.
Union of India, AIR 1981 SC 344, S.P. Gupta (supra), People's Union for
Democratic Rights (supra), Dr. D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC
378 and BALCO Employees' Union (Regd.) v. Union of India and Others [(2002) 2
SCC 333].
(v) When the Court is prima facie satisfied about variation of any
constitutional right of a group of people belonging to the disadvantaged
category, it may not allow the State or the Government from raising the
question as to the maintainability of the petition.
(vi) Although procedural laws apply to PIL cases but the question as to
whether the principles of res judicata or principles analogous thereto
would apply depends on the nature of the petition as also facts and
circumstances of the case. [See Rural Litigation and Entitlement
Kendra v. State of U.P., 1989 Supp (1) SCC 504 and Forward
Construction Co. v. Prabhat Mandal (Regd.), Andheri and others
(1986) 1 SCC 100].
(vii) The dispute between two warring groups purely in the realm of
private law would not be allowed to be agitated as a public interest
litigation. (See Ramsharan Autyanuprasi v. Union of India and
Others 1989 Supp (1) SCC 251).
(viii) However, in an appropriate case, although the petitioner might
have moved a court in his private interest and for redressal of personal
grievances, the Court in furtherance of the public interest may treat it
necessary to enquire into the state of affairs of the subject of litigation
in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr.
Mahesh Madhav Gosavi and Others (1987) 1 SCC 227).
(ix) The Court in special situations may appoint a Commission, or other
bodies for the purpose of investigating into the allegations and finding
out facts. It may also direct management of a public institution taken
over by such Committee. (See Bandhua Mukti Morchai, Rakesh
Chandra Narayan v. State of Bihar (1989) Suppl 1 SCC 644 and A.P.
Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718). In
Sachidanand Panday and Another v. State of West Bengal and
others [(1987) 2 SCC 295], this Court held,-
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"61. It is only when courts are apprised of gross violation of
fundamental rights by a group or a class action on when basic
human rights are invaded or when there are complaints of
such acts as shock the judicial conscience that the courts,
especially this Court, should leave aside procedural shackles
and hear such petitions and extent its jurisdiction under all
available provisions for remedying the hardships and miseries
of the need, the underdog and the neglected. I will be second
to none in extending help when such is required. But this
does mean that the doors of this Court are always open for
anyone to walk in. It is necessary to have some self-imposed
restraint on public interest litigants."
(ii) In an unreported judgment dated 30.06.2020 in B. Radhakrishna
Menon v. State of Kerala and Ors. [W.P.(C) No.12109 of 2020], at paragraph 45,
this Court held as under:
"45. Placing reliance on the above decisions, the learned Senior
Government Pleader submitted that a public interest writ petition
which lacks bona fides, lack of particulars satisfying the requirements of
a PIL, deserves to be dismissed with costs. Having regard to decisions
considered in Mythri Residents Association v. Secretary, Tripunithura
Municipality and Others, [2019 KHC 832], it has been summarised by the
journal thus:
"(1) The Courts must encourage genuine and bona fide PIL and
effectively discourage and curb the PIL filed for extraneous
considerations.
(2) Instead of every individual Judge devising his own procedure for
dealing with the public interest litigation, it would be appropriate for
each High Court to properly formulate rules for encouraging the
genuine PIL and discouraging the PIL filed with oblique motives.
Consequently, we request that the High Courts who have not yet framed
the rules, should frame the rules within three months. The Registrar
General of each High Court is directed to ensure that a copy of the rules
prepared by the High Court is sent to the Secretary General of this Court
immediately thereafter.
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(3) The Courts should prima facie verify the credentials of the petitioner
before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness
of the contents of the petition before entertaining a PIL.
(5) The Courts should be fully satisfied that substantial public interest is
involved before entertaining the petition.
(6) The Courts should ensure that the petition which involves larger
public interest, gravity and urgency must be given priority over other
petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is
aimed at redressal of genuine public harm or public injury. The Court
should also ensure that there is no personal gain, private motive or
oblique motive behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed by busybodies
for extraneous and ulterior motives must be discouraged by imposing
exemplary costs or by adopting similar novel methods to curb frivolous
petitions and the petitions filed for extraneous considerations.
(9) The misuse of public interest litigation is a serious matter of
concern for the judicial process.
(10) Both this Court and the High Courts are flooded with litigations and
are burdened by arrears.
(11) Frivolous or motivated petitions, ostensibly invoking the public
interest detract from the time and attention which courts must devote
to genuine causes.
(12) This Court has a long list of pending cases where the personal
liberty of citizens is involved.
(13) Those who await trial or the resolution of appeals against orders of
conviction have a legitimate expectation of early justice.
(14) It is a travesty of justice for the resources of the legal system to be
consumed by an avalanche of misdirected petitions purportedly filed in
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the public interest which, upon due scrutiny, are found to promote a
personal, business or political agenda.
(15) This has spawned an industry of vested interests in litigation.
(16) There is a grave danger that if this state of affairs is allowed to
continue, it would seriously denude the efficacy of the judicial system
by detracting from the ability of the court to devote its time and
resources to cases which legitimately require attention.
(17) Worse still, such petitions pose a grave danger to the credibility of
the judicial process.
(18) This has the propensity of endangering the credibility of other
institutions and undermining public faith in democracy and the rule of
law.
(19) This will happen when the agency of the court is utilised to settle
extra-judicial scores. Business rivalries have to be resolved in a
competitive market for goods and services.
(20) Political rivalries have to be resolved in the great hall of democracy
when the electorate votes its representatives in and out of office.
(21) Courts resolve disputes about legal rights and entitlements.
(22) Courts protect the rule of law.
(23) There is a danger that the judicial process will be reduced to a
charade, if disputes beyond the ken of legal parameters occupy the
judicial space."
16. In the Statement of Facts dated 17.09.2021, the Chief Election
Commissioner, first respondent, has furnished the details of cases
decided by the Hon'ble Supreme Court and other High Courts, on matters
relating to regulating the inner party functioning and conduct of elections,
as hereunder:
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"4. The question as to whether a Political Party
registered under Section 29A of the Representation of Peoples
Act, 1951 is amenable to the Writ jurisdiction of this Hon'ble
Court under Article 226 of the Constitution of India came up
for consideration before this Hon'ble Court in Anil Thomas v.
Indian National Congress and others reported in ILR 018 (2)
Kerala 36 and this Hon'ble Court has held that Writ Petition
under Article 226 of the Constitution of India is not
maintainable as against a Political Party, especially in the
matter of regulation of their internal affairs. Further, relying
on the dictum of the Hon'ble Supreme Court in Indian
National Congress (I) v. Institute of Social Welfare and
Others reported in (2002) 5 SCC 685, the Hon'ble Court has
held that the Election Commission cannot also regulate the
inner party functioning.
5. Further, the Hon'ble Madras High Court in the
Judgment dated 21-12-2018 in B. Ramkumar Adityan v. The
Chief Election Commissioner and Others reported in (2019)
2 MLJ 153, held that the Political Parties even if it is registered
under Section 29A of the Representation of Peoples Act, 1951
do not come under the jurisdiction of Article 226 of the
Constitution of India and that no Writ Petition can lie
concerning the internal affairs of the political party. Further,
it is also held therein that neither Article 324 of the
Constitution of India nor Section 29A of the Representation of
the Peoples Act, 1951, prescribe any duty cast upon the
Election Commission to oversee the in-house function of any
political party, and, if for any reason, the Election Commission
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is case upon with such duty to monitor that in-house activity
of any registered political party, the essence of Articles 324
and 329A of the Constitution of India would be watered down.
6. The Hon'ble Bombay High Court (Nagpur Bench) in
the Judgment dated 16-06-2020 in Writ Petition No. 1151 of
2020 in Harshwardhan B. Godghate v. Election Commission
of India, through Election Commissioner, New Delhi and
others, while considering the question whether a writ could
be issued declaring the organizational election of a registered
political party as null and void and whether directions could
be issued to the Election Commission of India to appoint
returning officer for conduct of organizational election of
registered political party, has held that under Article 324 of
the Constitution of India, the Election Commission is
concerned only with the superintendence, direction,
control as well as conduct of elections to the Parliament
and to the State Legislatures and that the Election
Commission is not concerned with the organizational election
of any political party."
17. Earlier, W.P.(C) No.32519 of 2017 has been filed by Mr. Hillari
Zacharia, the first petitioner herein, on 11.10.2017, seeking for the
following reliefs:
(i) a Writ of Mandamus directing the 1st respondent Election
Commission to initiate all steps possible to compel the 2 nd
respondent Union Government to grant the right to de-
register delinquent political parties on violation of the
undertakings given by those under S.29-A of the
Representation of Peoples Act;
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(ii) a similar Writ of Mandamus commanding the 2nd
respondent Union Government to respond to the abovesaid
demand to be made by the 1st respondent and dispose of
the same in accordance with law. An interim order
directing the 3rd respondent onwards not to proceed with
the nomination/election of the President of AICC, without
conducting election of members to Kerala Pradesh
Congress Committee preceded with election of members to
its lower bodies also was sought for."
18. On 06.12.2017, W.P.(C) No.32519 of 2017 has been disposed of by a
Hon'ble Division Bench of this Court, as hereunder:
"In view of the memo dated 04.12.2017 filed by the
petitioner, the writ petition is dismissed as withdrawn."
19. Subsequently, Mr. Hillari Zacharia, has filed W.P.(C) No.39436 of
2017, on the very same day, seeking for the following reliefs:
"(i) To issue a Writ of Mandamus or a Writ, Order or direction
in the nature of mandamus commanding the 1 st
respondent Commission to initiate all steps possible to
compel the 2nd respondent Union Government to grant the
right to de-register delinquent political parties which
violate the undertakings given by those under Section 29-A
of Representation of Peoples Act, 1951, by making
necessary amendments.
(ii) To issue a Writ of Mandamus or a Writ, Order or direction
in the nature of mandamus by setting a time-frame,
commanding the 2nd respondent to respond to the above
said demand to be made by the 1st respondent seeking
conferment of power to de-register political parties which
violate the undertakings given by those under Section 29-A
of Representation of Peoples Act, 1951 and dispose the
same in accordance with law.
(iii) To issue an order or direction in the nature of mandamus
directing the 3rd respondent not to proceed with the so
called election of the President of AICC without conducting
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election of members to Kerala Pradesh Congress
Committee preceded with election of members to its lower
bodies also ie. from its booth to DCC levels.
(iv) To issue an order or direction in the nature of mandamus
directing the 4th respondent not to proceed with the
nomination of AICC members from KPCC as well as the
nomination of the President of KPCC.
(v) To grant such other relief or reliefs which this Hon'ble
Court may deem fit and proper to grant in the
circumstances of this case."
20. After considering the reliefs sought for by the petitioner, said writ
petition has been dismissed on 07.12.2017, as hereunder.
"2. The very same petitioner has filed W.P.(C)
No.32519 of 2017, seeking identical reliefs. That writ
petition was dismissed as withdrawn by judgment dated
06.12.2017. At the time of the dismissal of the writ petition,
no liberty was granted to the petitioner to file a fresh writ
petition. It is despite that, this writ petition was filed and is
brought up today. Evidently therefore, this writ petition is
hit by the principles of res judicata and for that reason, has
to be dismissed.
Therefore, this writ petition is dismissed as not
maintainable."
21. Again, the first petitioner herein has filed W.P.(C) No.24466 of 2019.
Order made in the said writ petition on 18.09.2019, reads as under:
"In the context of prayers sought in this Writ Petition,
Sri.Murali Purushothaman, the learned Standing Counsel for
the Election Commission of India produces this court's
judgment in Anil Thomas v. Indian National Congress and Others
reported in 2018 KHC 3167 to point out that a Writ Petition on
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conduct of internal election within a political party may not
be maintainable and grievance, if any, should be raised
within the organizational structure or before the appropriate
civil forum.
2. In as much as the concerned prayers against the
respondent No.3 and their office bearers may not be
entertainable through a Writ Petition, the learned counsel
Sri. R. Sivadasan prays for the liberty to withdraw the
Writ Petition.
3. Having regard to the above and more particularly,
the prayer made by the petitioner's lawyer, the Writ Petition
is dismissed as not pressed. It is ordered accordingly."
22. Going through the above, it is clear that Mr. R. Sivadasan, learned
counsel for the petitioner therein, was aware of the decisions of this Court in
Anil Thomas v. Indian National Congress and Others reported in 2018
KHC 3167, and thus, he withdrew W.P.(C) No.24466 of 2019.
23. Without disclosing the fact of last W.P.(C) No.24466 of 2019, a false
declaration has been made in the affidavit filed to the present Writ Petition
(Filing) No.9038553/2021 on 07.09.2021, that the petitioners have not filed
any other petition earlier seeking similar or identical reliefs in respect of the
same subject matter. Prima facie, we are of the view that there is suppression
of facts and thus, the petitioners have abused the process of law.
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24. On the above aspects, let us consider the following decisions:
(i) In K.K. Modi v. K.N. Modi reported in AIR 1998 SC 1297, the
Hon'ble Supreme Court had an occasion to consider as to what is meant by
'abuse of process of Court', and at paragraphs 42 to 46, held as under:
"Under Order 6, Rule 16, the court may, at any stage of
the proceedings, order to be struck out, inter alia, any
matter in any pleading which is otherwise an abuse of the
process of the Court. Mulla in his treatise on the Code of
Civil Procedure, (15th Edition, Volume II, page 1179, note
7) has stated that power under clause (c) of 0.6, Rule 16
of the Code is confined to cases where the abuse of the
process of the court is manifest from the pleadings, and
that this power is unlike the power under Section 151,
whereunder Courts have inherent power to strike out
pleadings or to stay or dismiss proceedings which are an
abuse of their process. In the present case the High Court
has held the suit to be an abuse of the process of Court
on the basis of what is stated in the plaint.
The Supreme Court Practice 1995 published by Sweet
and Maxwell in paragraph 18/19/33 (page 344) explains
the phrase "abuse of the process of the court" thus: "This
term connotes that the process of the Court must be
used bona fide and properly and must not be abused. The
Court will prevent improper use of its machinery and will
in a proper case, summarily prevent its machinery from
being used as a means of vexation and oppression in the
process of litigation.... The categories of conduct
rendering a claim frivolous, vexatious or an abuse of
process are not closed but depend on all the relevant
circumstances. And for this purpose considerations of
public policy and the interests of justice may be very
material."
One of the examples cited as an abuse of the process of
Court is re-litigation. It is an abuse of the process of the
court and contrary of justice and public policy for a party
to re-litigate the same issue which has already been tried
and decided earlier against him. The re-agitation may or
may not be barred as res judicata. But if the same issue
is sought to be re-agitated, it also amounts to an abuse of
the process of the Court. A proceedings being filed for a
collateral purpose, or a spurious claim being made in
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litigation may also in a given set of facts amount to an
abuse of the process of the Court. Frivolous or vexatious
proceedings may also amount to an abuse of the process
of Court especially where the proceedings are absolutely
groundless. The Court then has the power to stop such
proceedings summarily and prevent the time of the
public and the Court from being wasted. Undoubtedly, it
is a matter of Courts' discretion whether such
proceedings should be stopped or not; and this discretion
has to be exercised with circumspection. It is a
jurisdiction which should be sparingly exercised, and
exercised only in special cases. The Court should also be
satisfied that there is no chance of the suit
succeeding. .. .."
In the case of Greenhalgh v. Mallard, (1947) 2 AER 255,
the court had to consider different proceedings on the
same cause of action for conspiracy, but supported by
different averments. The Court, held that if the plaintiff
has chosen to put his case in one way, he cannot
thereafter bring the same transaction before the court,
put his case in another way and say that he is relying on
a new cause of action. In such circumstances he can be
met with the plea of res judicata or the statement or
plaint may be struck out on the ground that the action is
frivolous and vexations and an abuse of the process of
court.
In Mcllkenny v. Chief Constable of West Midlands Police
Force and Anr., (1980) 2 AER 227, the Court of Appeal in
England struck out the pleading on the ground that the
action was an abuse of the process of the court since it
raised an issue identical to that which had been finally
determined at the plaintiffs' earlier criminal trial. The
court said even when it is not possible to strike out the
plaint on the ground of issue estoppel, the action can be
struck out as an abuse of the process of the court
because it is an abuse for a party to re-litigate a question
or issue which has already been decided against him
even though the other party cannot satisfy the strict rule
of res judicata or the requirement of issue estoppel."
(ii) In Arun Shankar Shukla v. State of U.P., (AIR 1999 SC 2554),
while dealing with the inherent power of the High Court under Section 482 of
the Cr.P.C, the Hon'ble Supreme Court held as under:
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"2. ...It is true that under Section 482 of the Code, the High
Court has inherent powers to make such orders as may be
necessary to give effect to any order under the Code or to
prevent the abuse of process of any court or otherwise to
secure the ends of justice. But the expressions "abuse of the
process of law" or "to secure the ends of justice" do not confer
unlimited jurisdiction on the High Court and the alleged abuse
of the process of law or the ends of justice could only be
secured in accordance with law including procedural law and
not otherwise. Further, inherent powers are in the nature of
extraordinary powers to be used sparingly for achieving the
object mentioned in Section 482 of the Code in cases where
there is no express provision empowering the High Court to
achieve the said object. It is well-nigh settled that inherent
power is not to be invoked in respect of any matter covered
by specific provisions of the Code or if its exercise would
infringe any specific provision of the Code....."
(iii) In State of Uttaranchal v. Balwant Singh Chaufal and Ors.
[(2010) 3 SCC 402], the Hon'ble Supreme Court held as under:
"154. This Court has been quite conscious that the forum of this
Court should not be abused by any one for personal gain or for
any oblique motive.In BALCO (supra), this Court held that the
jurisdiction is being abused by unscrupulous persons for their
personal gain. Therefore, the court must take care that the
forum be not abused by any person for personal gain.
155. In Dattaraj Nathuji Thaware (supra), this Court expressed
its anguish on misuse of the forum of the court under the garb
of public interest litigation and observed that the public interest
litigation is a weapon which has to be used with great care and
circumspection and the judiciary has to be extremely careful to
see that behind the beautiful veil of public interest, an ugly
private malice, vested interest and/or publicity seeking is not
lurking. It is to be used as an effective weapon in the armoury of
law for delivering social justice to the citizens. The court must
not allow its process to be abused for oblique considerations.
167. In Chhetriya Pardushan Mukti Sangharsh Samiti
(supra) this Court again emphasized that Article 32 is a great
and salutary safeguard for preservation of fundamental rights of
the citizens. The superior courts have to ensure that this
weapon under Article 32 should not be misused or abused by
any individual or organization.
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169. In Guruvayur Devaswom Managing Committee and
Anr. v. C.K. Rajan and Ors. [(2003) 7 SCC 546], it was
reiterated that the court must ensure that its process is not
abused and in order to prevent abuse of the process, the court
would be justified in insisting on furnishing of security before
granting injunction in appropriate cases. The courts may impose
heavy costs to ensure that judicial process is not misused.
170. In Dattaraj Nathuji Thaware (supra) this Court again
cautioned and observed that the court must look into the
petition carefully and ensure that there is genuine public interest
involved in the case before invoking its jurisdiction. The court
should be careful that its jurisdiction is not abused by a person
or a body of persons to further his or their personal causes or to
satisfy his or their personal grudge or grudges. The stream of
justice should not be allowed to be polluted by unscrupulous
litigants.
(iv) In Meghmala and Ors. v. G. Narasimha Reddy and Ors.,
[(2010) 8 SCC 383], the Hon'ble Supreme Court held as under:
"12. In Abbai Maligai Partnership Firm and Anr. v. K.
Santhakumaran and Ors. (AIR 1999 SC 1486), a three Judge
Bench of this Court considered the issue afresh and held that
filing of the review petition after dismissal of the special leave
petition by it against the self-same order amounted to an abuse
of process of the court and the entertainment of such a review
application was in affront to its order and it was subversive of
judicial discipline.
15. In K. Rajamouli v. A.V.K.N. Swamy (AIR 2001 SC 2316),
this Court considered the ratio of the judgment in
Kunhayammed (supra); and Abbai Maligai Partnership Firm
(supra) and held that if a review application has been filed
before the High Court prior to filing the special leave petition
before this Court and review petition is decided/rejected, special
leave petition against that order of review would be
maintainable. In case the review application has been filed
subsequent to dismissal of the special leave petition it would
amount to abuse of process of the court and shall be governed
by the ratio of the judgment in Abbai Maligai Partnership Firm
(supra). The said judgment has been approved and followed by
this Court in Green View Tea & Industries v. Collector,
Golaghat, Assam and Anr. (AIR 2004 SC 1738).
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16. In Kumaran Silk Trade (P) Ltd. v. Devendra (AIR 2007
SC 1185), this Court held as under:
"As a matter of fact at the earlier stage this Court
did not consider the question whether one of the
appeals against the order dismissing the Review
Petition on merits was maintainable. At best the
order of remand and the decision in
Kunhayammed and Ors. v. State of Kerala
and Anr. [(2000) 6 SCC 359] would enable the
petitioner to get over the ratio of the three Judge
Bench decision in Abbai Maligai Partnership
Firm and Anr. v. K. Santhakumaran and Ors.
[(1998) 7 SCC 386] that the seeking of a review
after the petition for special leave to appeal was
dismissed without reserving any liberty in the
petitioner was an abuse of process."
17. Thus, the law on the issue stands crystallized to the effect
that in case a litigant files a review petition before filing the
Special Leave Petition before this Court and it remains pending
till the Special Leave Petition stands dismissed, the review
petition deserves to be considered. In case it is filed subsequent
to dismissal of the Special Leave Petition, the process of filing
review application amounts to abuse of process of the court.
18. In view of the above, we are of the considered opinion that
filing of such a review application by the respondents at a
belated stage amounts to abuse of process of the Court and
such an application is not maintainable. Thus, the High Court
ought not to have entertained the writ petition against the order
of dismissal of the review application by the Special Court and
the order of the High Court to that extent is liable to be set
aside."
(v) In Kishore Samrite v. State of U.P. and Ors., [(2013) 2 SCC
398], the Hon'ble Supreme Court held as under:
"32. The cases of abuse of the process of court and such allied
matters have been arising before the Courts consistently. This
Court has had many occasions where it dealt with the cases of
this kind and it has clearly stated the principles that would
govern the obligations of a litigant while approaching the court
for redressal of any grievance and the consequences of abuse of
the process of court. We may recapitulate and state some of the
principles. It is difficult to state such principles exhaustively and
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with such accuracy that would uniformly apply to a variety of
cases. These are:
(i) Courts have, over the centuries, frowned upon
litigants who, with intent to deceive and mislead the
Courts, initiated proceedings without full disclosure of
facts and came to the courts with 'unclean hands'.
Courts have held that such litigants are neither entitled
to be heard on the merits of the case nor entitled to
any relief.
(ii) The people, who approach the Court for relief on an
ex parte statement, are under a contract with the court
that they would state the whole case fully and fairly to
the court and where the litigant has broken such faith,
the discretion of the court cannot be exercised in
favour of such a litigant.
(iii) The obligation to approach the Court with clean
hands is an absolute obligation and has repeatedly
been reiterated by this Court.
(iv) Quests for personal gains have become so intense
that those involved in litigation do not hesitate to take
shelter of falsehood and misrepresent and suppress
facts in the court proceedings. Materialism,
opportunism and malicious intent have over-shadowed
the old ethos of litigative values for small gains.
(v) A litigant who attempts to pollute the stream of
justice or who touches the pure fountain of justice with
tainted hands is not entitled to any relief, interim or
final.
(vi) The Court must ensure that its process is not
abused and in order to prevent abuse of the process
the court, it would be justified even in insisting on
furnishing of security and in cases of serious abuse,
the Court would be duty bound to impose heavy costs.
(vii) Wherever a public interest is invoked, the Court
must examine the petition carefully to ensure that
there is genuine public interest involved. The stream of
justice should not be allowed to be polluted by
unscrupulous litigants.
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(viii) The Court, especially the Supreme Court, has to
maintain strictest vigilance over the abuse of the
process of court and ordinarily meddlesome
bystanders should not be granted "visa". Many societal
pollutants create new problems of unredressed
grievances and the Court should endure to take cases
where the justice of the lis well-justifies it.
[Refer: Dalip Singh v. State of U.P. and Ors.: (2010) 2
SCC 114; Amar Singh v. Union of India and Ors. (2011)
7 SCC 69 and State of Uttaranchal v. Balwant Singh
Chaufal and Ors. (2010) 3 SCC 402].
33. 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.
[(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. We cannot dwell in
the home of processual obsolescence when our
Constitution highlights social justice as a goal. We hold
that there is no merit in the contentions of the writ
Petitioner and dismiss the petition."
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36. The party not approaching the Court with clean hands would
be liable to be non-suited and such party, who has also
succeeded in polluting the stream of justice by making patently
false statements, cannot claim relief, especially under Article
136 of the Constitution. While approaching the court, a litigant
must state correct facts and come with clean hands. Where such
statement of facts is based on some information, the source of
such information must also be disclosed. Totally misconceived
petition amounts to abuse of the process of the court and such a
litigant is not required to be dealt with lightly, as a petition
containing misleading and inaccurate statement, if filed, to
achieve an ulterior purpose amounts to abuse of the process of
the court. A litigant is bound to make "full and true disclosure of
facts". (Refer: Tilokchand H.B. Motichand and Ors. v. Munshi and
Anr. [(1969) 1 SCC 110]; A. Shanmugam v. Ariya Kshatriya
Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam
and Anr. [[(2012) 6 SCC 430]; Chandra Shashi v. Anil Kumar
Verma [(1995) 1 SCC 421]; Abhyudya Sanstha v. Union of India
and Ors. [(2011) 6 SCC 145]; State of Madhya Pradesh v.
Narmada Bachao Andolan and Anr. [(2011) 7 SCC 639];
Kalyaneshwari v. Union of India and Anr. [(2011) 3 SCC 287)].
37. The person seeking equity must do equity. It is not just the
clean hands, but also clean mind, clean heart and clean
objective that are the equi-fundamentals of judicious litigation.
The legal maxim jure naturae aequum est neminem cum
alterius detrimento et injuria fieri locupletiorem, which means
that it is a law of nature that one should not be enriched by the
loss or injury to another, is the precept for Courts. Wide
jurisdiction of the court should not become a source of abuse of
the process of law by the disgruntled litigant. Careful exercise is
also necessary to ensure that the litigation is genuine, not
motivated by extraneous considerations and imposes an
obligation upon the litigant to disclose the true facts and
approach the court with clean hands."
(vi) In Chandran Ratnaswami and Ors. v. K.C. Palanisamy and
Ors. [(2013) 6 SCC 740], the Hon'ble Supreme Court held as under:
"29. The doctrine of abuse of process of court and the remedy of
refusal to allow the trial to proceed is well-established and
recognized doctrine both by the English courts and courts in
India. There are some established principles of law which bar the
trial when there appears to be abuse of process of court. Lord
Morris in the case of Connelly v. Director of Public
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Prosecutions, (1964) 2 All ER 401 (HL) observed: "There can
be no doubt that a court which is endowed with a particular
jurisdiction has powers which are necessary to enable it to act
effectively within such jurisdiction. A court must enjoy such
powers in order to enforce its rule of practice and to suppress
any abuse of its process and to defeat any attempted thwarting
of its process". "The power (which is inherent in a court's
jurisdiction) to prevent abuse of its process and to control its
own procedure must in a criminal court include a power to
safeguard an accused person from oppression or prejudice." In
his separate pronouncement, Lord Delvin in the same case
observed that where particular criminal proceedings constitute
an abuse of process, the court is empowered to refuse to allow
the indictment to proceed to trial.
30. In Hui Chi-Ming v. The Queen [(1992) 1 AC 34 (PC)], the
Privy Council defined the word "abuse of process" as something
so unfair and wrong with the prosecution that the court should
not allow a prosecutor to proceed with what is, in all other
respects, a perfectly supportable case.
31. In the leading case of Bennett v. Horseferry Road
Magistrates' Court, (1993) 3 All ER 138, on the application of
abuse of process, the court confirms that an abuse of process
justifying the stay of prosecution could arise in the following
circumstances:
"(i) where it would be impossible to give the
accused a fair trial; or
(ii) where it would amount to
misuse/manipulation of process because it
offends the court's sense of justice and propriety
to be asked to try the accused in the
circumstances of the particular case.
32. In R. v. Derby Crown Court ex p Brooks, [(1985) 80
Cr.App.R. 164], Lord Chief Justice Ormrod stated: "It may be an
abuse of process if either,-
"(a) the prosecution has manipulated or misused
the process of the court so as to deprive the
defendant of a protection provided by law or to
take unfair advantage of a technicality, or
(b) on the balance of probability the defendant
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has been, or will be, prejudiced in the preparation
of conduct of his defence by delay on the part of
the prosecution which is unjustifiable."
33. Lord Justice Neill in R. v. Beckford, [1996] 1 Cr.App.R. 94:
[1995] R.T.R. 251 observed that: "The jurisdiction to stay can be
exercised in many different circumstances. Nevertheless two
main strands can be detected in the authorities: (a) cases where
the court concludes that the defendant cannot receive a fair
trial; (b) cases where the court concludes that it would be
unfair for the defendant to be tried." What is unfair and wrong
will be for the court to determine on the individual facts of each
case.
34. This Court in State of Karnataka v. L. Muniswamy and
Others, (1977) 2 SCC 699 observed that the wholesome power
under Section 482 Cr.P.C. entitles the High Court to quash a
proceeding when it comes to the conclusion that allowing the
proceeding to continue would be an abuse of the process of the
Court or that the ends of justice require that the proceeding
ought to be quashed. The High Courts have been invested with
inherent powers, both in civil and criminal matters, to achieve a
salutary public purpose. A court proceeding ought not to be
permitted to degenerate into a weapon of harassment or
persecution. The Court observed in this case that ends of justice
are higher than the ends of mere law though justice must be
administered according to laws made by the legislature. It was
held in this case (at p.703 of SCC):
"7. .....
In the exercise of this wholesome power, the High
Court is entitled to quash a proceeding if it comes
to the conclusion that allowing the proceeding to
continue would be an abuse of the process of the
Court or that the ends of justice require that the
proceeding ought to be quashed. The saving of
the High Court's inherent powers, both in civil
and criminal matters, is designed to achieve a
salutary public purpose which is that a court
proceeding ought not to be permitted to
degenerate into a weapon of harassment or
persecution. In a criminal case, the veiled object
behind a lame prosecution, the very nature of the
material on which the structure of the
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prosecution rests and the like would justify the
High Court in quashing the proceeding in the
interest of justice. The ends of justice are higher
than the ends of mere law though justice has got
to be administered according to laws made by
the legislature. The compelling necessity for
making these observations is that without a
proper realisation of the object and purpose of
the provision which seeks to save the inherent
powers of the High Court to do justice, between
the State and its subjects, it would be impossible
to appreciate the width and contours of that
salient jurisdiction." This case has been followed
in a large number of subsequent cases of this
Court and other courts.
35. In State of Haryana and Others v. Bhajan Lal and
Others, [1992 Supp.(1) SCC 335], the Hon'ble Apex Court in the
backdrop of interpretation of various relevant provisions of
Cr.P.C. under Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 of the Constitution of
India or the inherent powers under Section 482 Cr.P.C. gave the
following categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the process
of the court or otherwise to secure the ends of justice. Thus, this
Court made it clear that it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an exhaustive
list to myriad kinds of cases wherein such power should be
exercised: (SCC pp. 378-79, para 102)
"102.
(1) .........
(2) .....
(3) ......
(4) .....
(5) .....
(6).....
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
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36. This Court in Zandu Pharmaceutical Works Ltd. and
Others v. Mohd. Sharaful Haque and Another, [(2005) 1
SCC 122] observed thus: (SCC p. 128, para 8)
"8. ... It would be an abuse of process of the
court to allow any action which would result in
injustice and prevent promotion of justice. In
exercise of the powers, court would be
justified to quash any proceeding if it finds
that initiation/continuance of it amounts to
abuse of the process of court or quashing of
these proceedings would otherwise serve the
ends of justice. When no offence is disclosed
by the complaint, the court may examine the
question of fact. When a complaint is sought
to be quashed, it is permissible to look into the
materials to assess what the complainant has
alleged and whether any offence is made out
even if the allegations are accepted in toto."
37. In Indian Oil Corpn. v. NEPC India Ltd. and Others,
[(2006) 6 SCC 736], this Court again cautioned about a growing
tendency in business circles to convert purely civil disputes into
criminal cases. The Court noticed the prevalent impression that
civil law remedies are time consuming and do not adequately
protect the interests of lenders/creditors. The Court further
observed that: (SCC p. 749, para 13) "13. ... Any effort to settle
civil disputes and claims, which do not involve any criminal
offence, by applying pressure through criminal prosecution
should be deprecated and discouraged."
38. In the case of Inder Mohan Goswami and Another v.
State of Uttaranchal and Others, [(2007) 12 SCC 1], this
Court after considering series of decisions observed:
"46. The court must ensure that criminal
prosecution is not used as an instrument of
harassment or for seeking private vendetta or
with an ulterior motive to pressurise the accused.
On analysis of the aforementioned cases, we are
of the opinion that it is neither possible nor
desirable to lay down an inflexible rule that would
govern the exercise of inherent jurisdiction.
Inherent jurisdiction of the High Courts under
Section 482 CrPC though wide has to be
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exercised sparingly, carefully and with caution
and only when it is justified by the tests
specifically laid down in the statute itself and in
the aforementioned cases. In view of the settled
legal position, the impugned judgment cannot be
sustained.
xxx xxx xxx
50. Civilised countries have recognised that
liberty is the most precious of all the human
rights. The American Declaration of
Independence, 1776, French Declaration of the
Rights of Men and the Citizen, 1789, Universal
Declaration of Human Rights and the
International Covenant of Civil and Political
Rights, 1966 all speak with one voice--liberty is
the natural and inalienable right of every human
being. Similarly, Article 21 of our Constitution
proclaims that no one shall be deprived of his
liberty except in accordance with procedure
prescribed by law.
51. The issuance of non-bailable warrants
involves interference with personal liberty. Arrest
and imprisonment means deprivation of the most
precious right of an individual. Therefore, the
courts have to be extremely careful before
issuing non-bailable warrants.
52. Just as liberty is precious for an individual so
is the interest of the society in maintaining law
and order. Both are extremely important for the
survival of a civilised society. Sometimes in the
larger interest of the public and the State it
becomes absolutely imperative to curtail freedom
of an individual for a certain period, only then the
non-bailable warrants should be issued."
39. In G. Sagar Suri and Another v. State of U.P. and
Others, (2000) 2 SCC 636, this Court observed that it is the
duty and obligation of the criminal court to exercise a great deal
of caution in issuing the process, particularly when matters are
essentially of civil nature.
40. In the case of S.N. Sharma v. Bipen Kumar Tiwari and
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Others, AIR 1970 SC 786 (at p.789), this Court has stated thus:
"7. ..... It appears to us that, though the Code of
Criminal Procedure gives to the police unfettered
power to investigate all cases where they suspect
that a cognizable offence has been committed, in
appropriate cases an aggrieved person can
always seek a remedy by invoking the power of
the High Court under Article 226 of the
Constitution under which, if the High Court could
be convinced that the power of investigation has
been exercised by a police officer mala fide, the
High Court can always issue a writ of mandamus
restraining the police officer from misusing his
legal powers. The fact that the Code does not
contain any other provision giving power to a
Magistrate to stop investigation by the police
cannot be a ground for holding that such a power
must be read in Section 159 of the Code."
41. In the case of State of West Bengal and Others v.
Swapan Kumar Guha and Others, AIR 1982 SC 949, while
examining the power of a police officer in the field of
investigation of a cognizable offence, Chandrachud, C.J. has
affirmed the view expressed by Mathew, J. and observed as
follows: (at p.958 of AIR)
"22. .... There is no such thing like unfettered
discretion in the realm of powers defined by
statutes and indeed, unlimited discretion in that
sphere can become a ruthless destroyer of
personal freedom. The power to investigate into
cognizable offences must, therefore, be exercised
strictly on the condition on which it is granted by
the Code. ...."
42. In the case of Uma Shankar Gopalika v. State of Bihar
and Another, (2005) 10 SCC 336, this Court has held as under:
"6. Now the question to be examined by us is as
to whether on the facts disclosed in the petition
of complaint any criminal offence whatsoever is
made out much less offences under Sections
420/120-B IPC. The only allegation in the
complaint petition against the accused persons is
that they assured the complainant that when
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they receive the insurance claim amounting to Rs
4,20,000, they would pay a sum of Rs 2,60,000 to
the complainant out of that but the same has
never been paid. Apart from that there is no
other allegation in the petition of complaint. It
was pointed out on behalf of the complainant
that the accused fraudulently persuaded the
complainant to agree so that the accused
persons may take steps for moving the Consumer
Forum in relation to the claim of Rs 4,20,000. It is
well settled that every breach of contract would
not give rise to an offence of cheating and only in
those cases breach of contract would amount to
cheating where there was any deception played
at the very inception. If the intention to cheat has
developed later on, the same cannot amount to
cheating. In the present case it has nowhere
been stated that at the very inception there was
any intention on behalf of the accused persons to
cheat which is a condition precedent for an
offence under Section 420 IPC.
7. In our view petition of complaint does not
disclose any criminal offence at all much less any
offence either under Section 420 or Section 120-B
IPC and the present case is a case of purely civil
dispute between the parties for which remedy
lies before a civil court by filing a properly
constituted suit. In our opinion, in view of these
facts allowing the police investigation to continue
would amount to an abuse of the process of court
and to prevent the same it was just and
expedient for the High Court to quash the same
by exercising the powers under Section 482 of
the Cr.P.C., which it has erroneously refused."
25. On the aspect of equity, suppression and clean hands, let us
consider a few decisions.
(i) In Arunima Baruah v. Union of India [(2007) 6 SCC 120], the
Hon'ble Supreme Court, at paragraphs 11 to 14, held as under:
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"11. The court's jurisdiction to determine the lis between
the parties, therefore, may be viewed from the human rights
concept of access to justice. The same, however, would not
mean that the court will have no jurisdiction to deny equitable
relief when the complainant does not approach the court with a
pair of clean hands; but to what extent such relief should be
denied is the question.
12. It is trite law that so as to enable the court to refuse
to exercise its discretionary jurisdiction suppression must be of
material fact. What would be a material fact, suppression
whereof would disentitle the appellant to obtain a discretionary
relief, would depend upon the facts and circumstances of each
case. Material fact would mean material for the purpose of
determination of the lis, the logical corollary whereof would be
that whether the same was material for grant or denial of the
relief. If the fact suppressed is not material for determination of
the lis between the parties, the court may not refuse to
exercise its discretionary jurisdiction. It is also trite that a
person invoking the discretionary jurisdiction of the court
cannot be allowed to approach it with a pair of dirty hands. But
even if the said dirt is removed and the hands become clean,
whether the relief would still be denied is the question.
13. In Moody v. Cox [(1917) 2 Ch. 71: (1916-17) All ER
Rep 548 (CA)], it was held: (All ER pp. 555 I-556 D) It is
contended that the fact that Moody has given those bribes
prevents him from getting any relief in a court of equity. The
first consequence of his having offered the bribes is that the
vendors could have rescinded the contract. But they were not
bound to do so. They had the right to say ?no, we are well
satisfied with the contract; it is a very good one for us; we
affirm it". The proposition put forward by counsel for the
defendants is: "It does not matter that the contract has been
affirmed; you still can claim no relief of any equitable character
in regard to that contract because you gave a bribe in respect
of it. If there is a mistake in the contract, you cannot rectify it,
if you desire to rescind the contract, you cannot rescind it, for
that is equitable relief." With some doubt they said: "We do not
think you can get an injunction to have the contract performed,
though the other side have affirmed it, because an injunction
may be an equitable remedy." When one asks on what
principle this is supposed to be based, one receives in answer
the maxim that anyone coming to equity must come with clean
hands. I think the expression "clean hands" is used more often
in the textbooks than it is in the judgments, though it is
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occasionally used in the judgments, but I was very much
surprised to hear that when a contract, obtained by the giving
of a bribe, had been affirmed by the person who had a primary
right to affirm it, not being an illegal contract, the courts of
equity could be so scrupulous that they would refuse any relief
not connected at all with the bribe. I was glad to find that it
was not the case, because I think it is quite clear that the
passage in Dering v. Earl of Winchelsea [(1787) 1 Cox Eq Cas
318: 2 Bos & P 270], which has been referred to, shows that
equity will not apply the principle about clean hands unless the
depravity, the dirt in question on the hand, has an immediate
and necessary relation to the equity sued for. In this case the
bribe has no immediate relation to rectification, if rectification
were asked, or to rescission in connection with a matter not in
any way connected with the bribe. Therefore that point, which
was argued with great strenuousness by counsel for the
defendant, Hatt, appears to me to fail, and we have to consider
the merits of the case.
14. In Halsbury's Laws of England, 4th Edn., Vol. 16,
pp. 874-76, the law is stated in the following terms:
"1303. He who seeks equity must do equity. In
granting relief peculiar to its own jurisdiction a court of
equity acts upon the rule that he who seeks equity
must do equity. By this it is not meant that the court
can impose arbitrary conditions upon a plaintiff simply
because he stands in that position on the record. The
rule means that a man who comes to seek the aid of a
court of equity to enforce a claim must be prepared to
submit in such proceedings to any directions which the
known principles of a court of equity may make it
proper to give; he must do justice as to the matters in
respect of which the assistance of equity is asked. In a
court of law it is otherwise: when the plaintiff is found
to be entitled to judgment, the law must take its
course; no terms can be imposed.
* * * 1305. He who comes into equity must come
with clean hands. "A court of equity refuses relief to a
plaintiff whose conduct in regard to the subject-
matter of the litigation has been improper. This was
formerly expressed by the maxim "he who has
committed iniquity shall not have equity", and relief
was refused where a transaction was based on the
plaintiff's fraud or misrepresentation, or where the
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plaintiff sought to enforce a security improperly
obtained, or where he claimed a remedy for a breach
of trust which he had himself procured and whereby
he had obtained money. Later it was said that the
plaintiff in equity must come with perfect propriety of
conduct, or with clean hands. In application of the
principle a person will not be allowed to assert his title
to property which he has dealt with so as to defeat his
creditors or evade tax, for he may not maintain an
action by setting up his own fraudulent design.
The maxim does not, however, mean that equity
strikes at depravity in a general way; the cleanliness
required is to be judged in relation to the relief sought,
and the conduct complained of must have an
immediate and necessary relation to the equity sued
for; it must be depravity in a legal as well as in a
moral sense. Thus, fraud on the part of a minor
deprives him of his right to equitable relief
notwithstanding his disability. Where the transaction is
itself unlawful it is not necessary to have recourse to
this principle. In equity, just as at law, no suit lies in
general in respect of an illegal transaction, but this is
on the ground of its illegality, not by reason of the
plaintiff's demerits."
(ii) In Prestige Lights Ltd. v. State Bank of India [(2007) 8 SCC
449], at paragraphs 33, 34 and 35, the Hon'ble Supreme Court held
as under:
"33. It is thus clear that though the appellant-
Company had approached the High Court under
Article 226 of the Constitution, it had not candidly
stated all the facts to the Court. The High Court is
exercising discretionary and extraordinary jurisdiction
under Article 226 of the Constitution. Over and above,
a Court of Law is also a Court of Equity. It is, therefore,
of utmost necessity that when a party approaches a
High Court, he must place all the facts before the
Court without any reservation. If there is suppression
of material facts on the part of the applicant or
twisted facts have been placed before the Court, the
Writ Court may refuse to entertain the petition and
dismiss it without entering into merits of the matter.
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34. The object underlying the above principle
has been succinctly stated by Scrutton, L.J., in R v.
Kensington Income Tax Commissioners, [(1917) 1 KB
486 : 86 LJ KB 257 : 116 LT 136], in the following
words: "(I)t has been for many years the rule of the
Court, and one which it is of the greatest importance
to maintain, that when an applicant comes to the
Court to obtain relief on an ex parte statement he
should made a full and fair disclosure of all the
material facts, not law. He must not misstate the law
if he can help the Court is supposed to know the law.
But it knows nothing about the facts, and the
applicant must state fully and fairly the facts, and the
penalty by which the Court enforces that obligation is
that if it finds out that the facts have not been fully
and fairly stated to it, the Court will set aside, any
action which it has taken on the faith of the imperfect
statement".
(emphasis supplied)
35. It is well settled that a prerogative remedy is
not a matter of course. In exercising extraordinary
power, therefore, a Writ Court will indeed bear in mind
the conduct of the party who is invoking such
jurisdiction. If the applicant does not disclose full facts
or suppresses relevant materials or is otherwise guilty
of misleading the Court, the Court may dismiss the
action without adjudicating the matter. The rule has
been evolved in larger public interest to deter
unscrupulous litigants from abusing the process of
Court by deceiving it. The very basis of the writ
jurisdiction rests in disclosure of true, complete and
correct facts. If the material facts are not candidly
stated or are suppressed or are distorted, the very
functioning of the writ courts would become
impossible."
(iii) In Udyami Evam Khadi Gramodyog Welfare Sanstha and
another v. State of Uttar Pradesh [(2008) 1 SCC 560], at
paragraphs 16 and 17, the Hon'ble Apex Court held as under:
"16. A writ remedy is an equitable one. A person
approaching a superior court must come with a pair of
clean hands. It not only should not suppress any
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material fact, but also should not take recourse to the
legal proceedings over and over again which amounts
to abuse of the process of law. In Advocate General,
State of Bihar v. M.P. Khair Industries[(1980) 3 SCC
311], this Court was of the opinion that such a
repeated filing of writ petitions amounts to criminal
contempt.
17. For the reasons aforementioned, there is not
merit in this appeal which is dismissed accordingly
with costs. Counsel's fee quantified at Rs.50,000."
(iv) In Amar Singh v. Union of India & Others reported in (2011)
7 SCC 69, on the aspect of a litigant approaching the court, with
unclean hands, at, paragraphs 53 to 57, and at, paragraph 59,
considered several judgments. Finally, at paragraph No.60,
extracted a paragraph from Dalip Singh v. State of U.P. and
others, [(2010) 2 SCC 114]:
"53. Courts have, over the centuries, frowned upon
litigants who, with intent to deceive and mislead the
courts, initiated proceedings without full disclosure of
facts. Courts held that such litigants have come with
"unclean hands" and are not entitled to be heard on the
merits of their case.
54. In Dalglish v. Jarvie [2 Mac. & G. 231, 238], the
Court, speaking through Lord Langdale and Rolfe B., laid
down:
"It is the duty of a party asking for an
injunction to bring under the notice of the
Court all facts material to the determination
of his right to that injunction; and it is no
excuse for him to say that he was not aware
of the importance of any fact which he has
omitted to bring forward."
55. In Castelli v. Cook [1849 (7) Hare, 89, 94], Vice
Chancellor Wigram, formulated the same principles as
follows:
"A plaintiff applying ex parte comes under a
contract with the Court that he will state the
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whole case fully and fairly to the Court. If he
fails to do that, and the Court finds, when
the other party applies to dissolve the
injunction, that any material fact has been
suppressed or not properly brought forward,
the plaintiff is told that the Court will not
decide on the merits, and that, as has
broken faith with the Court, the injunction
must go."
56. In Republic of Peru v. Dreyfus Brothers &
Company [55 L.T. 802,803], Justice Kay reminded us of
the same position by holding thus:
"...If there is an important misstatement,
speaking for myself, I have never hesitated,
and never shall hesitate until the rule is
altered, to discharge the order at once, so as
to impress upon all persons who are suitors
in this Court the importance of dealing in
good faith with the Court when ex parte
applications are made."
57. In one of the most celebrated cases upholding this
principle, in the Court of Appeal in R. v. Kensington
Income Tax Commissioner [1917 (1) K.B. 486] Lord
Justice Scrutton formulated as under:
"...........and it has been for many years the
rule of the Court, and one which it is of the
greatest importance to maintain, that when
an applicant comes to the Court to obtain
relief on an ex parte statement he should
make a full and fair disclosure of all the
material facts- facts, now law. He must not
misstate the law if he can help it - the court
is supposed to know the law. But it knows
nothing about the facts, and the applicant
must state fully and fairly the facts, and the
penalty by which the Court enforces that
obligation is that if it finds out that the facts
have been fully and fairly stated to it, the
Court will set aside any action which it has
taken on the faith of the imperfect
statement."
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59. The aforesaid requirement of coming to Court with
clean hands has been repeatedly reiterated by this
Court in a large number of cases. Some of which may
be noted, they are: Hari Narain v. Badri Das - AIR
1963 SC 1558, Welcome Hotel and others v. State
of A.P. and others - (1983) 4 SCC 575, G.
Narayanaswamy Reddy (Dead) by LRs. and
Another v. Government of Karnatka and another -
(1991) 3 SCC 261, S.P. Chengalvaraya Naidu (Dead)
by LRs. v. Jagannath (Dead) by LRs. and others
(1994) 1 SCC 1, A.V. Papayya Sastry and others v.
Government of A.P. and others - (2007) 4 SCC 221,
Prestige Lights Limited v. SBI - (2007) 8 SCC 449,
Sunil Poddar and others v. Union Bank of India -
(2008) 2 SCC 326, K.D.Sharma v. SAIL and others -
(2008) 12 SCC 481, G. Jayashree and others v.
Bhagwandas S. Patel and others - (2009) 3 SCC
141, Dalip Singh v. State of U.P. and others - (2010)
2 SCC 114.
60. In the last noted case of Dalip Singh (supra), the
Hon'ble Supreme Court has given this concept a new
dimension which has a far reaching effect. We,
therefore, repeat those principles here again:
"For many centuries Indian society
cherished two basic values of life i.e.
"satya"(truth) and "ahimsa (non-violence),
Mahavir, Gautam Budha and Mahatma Gandhi
guided the people to ingrain these values in
their daily life. Truth constituted an integral
part of the justice-delivery system which was
in vogue in the pre- independence era and the
people used to feel proud to tell truth in the
courts irrespective of the consequences.
However, post-Independence period has seen
drastic changes in our value system. The
materialism has overshadowed the old ethos
and the quest for personal gain has become
so intense that those involved in litigation do
not hesitate to take shelter of falsehood,
misrepresentation and suppression of facts in
the court proceedings.
In the last 40 years, a new creed of
litigants has cropped up. Those who belong to
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this creed do not have any respect for truth.
They shamelessly resort to falsehood and
unethical means for achieving their goals. In
order to meet the challenge posed by this
new creed of litigants, the courts have, from
time to time, evolved new rules and it is now
well established that a litigant, who attempts
to pollute the stream of justice or who touches
the pure fountain of justice with tainted
hands, is not entitled to any relief, interim or
final."
(v) In Kishore Samrite v. State of U.P. & Others [(2013) 2 SCC
398], at paragraphs 32 to 36, the Hon'ble Apex Court held as under:
"32. With the passage of time, it has been realised
that people used to feel proud to tell the truth in the
Courts, irrespective of the consequences but that
practice no longer proves true, in all cases. The Court
does not sit simply as an umpire in a contest between
two parties and declare at the end of the combat as to
who has won and who has lost but it has a legal duty of
its own, independent of parties, to take active role in the
proceedings and reach at the truth, which is the
foundation of administration of justice. Therefore, the
truth should become the ideal to inspire the courts to
pursue. This can be achieved by statutorily mandating
the Courts to become active seekers of truth. To enable
the courts to ward off unjustified interference in their
working, those who indulge in immoral acts like perjury,
prevarication and motivated falsehood, must be
appropriately dealt with. The parties must state
forthwith sufficient factual details to the extent that it
reduces the ability to put forward false and exaggerated
claims and a litigant must approach the Court with clean
hands. It is the bounden duty of the Court to ensure that
dishonesty and any attempt to surpass the legal process
must be effectively curbed and the Court must ensure
that there is no wrongful, unauthorised or unjust gain to
anyone as a result of abuse of the process of the Court.
One way to curb this tendency is to impose realistic or
punitive costs.
33. The party not approaching the Court with clean
hands would be liable to be non-suited and such party,
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who has also succeeded in polluting the stream of
justice by making patently false statements, cannot
claim relief, especially under Article 136 of the
Constitution. While approaching the court, a litigant
must state correct facts and come with clean hands.
Where such statement of facts is based on some
information, the source of such information must also be
disclosed. Totally misconceived petition amounts to
abuse of the process of the court and such a litigant is
not required to be dealt with lightly, as a petition
containing misleading and inaccurate statement, if filed,
to achieve an ulterior purpose amounts to abuse of the
process of the court. A litigant is bound to make "full and
true disclosure of facts". (Refer: Tilokchand H.B.
Motichand & Ors. v. Munshi & Anr. [(1969) 1 SCC
110]; A. Shanmugam v. Ariya Kshatriya Rajakula
Vamsathu Madalaya Nandhavana Paripalanai
Sangam & Anr. [(2012) 6 SCC 430]; Chandra Shashi
v. Anil Kumar Verma [(1995) SCC 1 421]; Abhyudya
Sanstha v. Union of India & Ors. [(2011) 6 SCC 145];
State of Madhya Pradesh v. Narmada Bachao
Andolan & Anr. [(2011) 7 SCC 639]; Kalyaneshwari v.
Union of India & Anr. [(2011) 3 SCC 287)].
34. The person seeking equity must do equity. It is
not just the clean hands, but also clean mind, clean
heart and clean objective that are the equi-
fundamentals of judicious litigation. The legal maxim
jure naturae aequum est neminem cum alterius
detrimento et injuria fieri locupletiorem, which means
that it is a law of nature that one should not be enriched
by the loss or injury to another, is the percept for Courts.
Wide jurisdiction of the court should not become a
source of abuse of the process of law by the disgruntled
litigant. Careful exercise is also necessary to ensure that
the litigation is genuine, not motivated by extraneous
considerations and imposes an obligation upon the
litigant to disclose the true facts and approach the court
with clean hands.
35. No litigant can play "hide and seek" with the
courts or adopt "pick and choose". True facts ought to
be disclosed as the Court knows law, but not facts. One,
who does not come with candid facts and clean breast
cannot hold a writ of the court with soiled hands.
Suppression or concealment of material facts is
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impermissible to a litigant or even as a technique of
advocacy. In such cases, the Court is duty bound to
discharge rule nisi and such applicant is required to be
dealt with for contempt of court for abusing the process
of the court. {K.D. Sharma v. Steel Authority of India Ltd.
& Ors. [(2008) 12 SCC 481]}.
36. Another settled canon of administration of
justice is that no litigant should be permitted to misuse
the judicial process by filing frivolous petitions. No
litigant has a right to unlimited drought upon the court
time and public money in order to get his affairs settled
in the manner as he wishes. Easy access to justice
should not be used as a licence to file misconceived and
frivolous petitions. [Buddhi Kota Subbarao (Dr.) v. K.
Parasaran, (1996) 5 SCC 530)]."
26. Although, there are some materials, as regards the conduct of the
learned counsel, who had appeared in the case on hand, we are not inclined
to make any observation, but deem it fit to consider a few decisions on the
role of a Counsel in a litigation.
(i) In Lalit Mohan Das v. The Advocate General, Orissa and
Another, (AIR 1957 SC 250), the Hon'ble Supreme Court held as
under:
"A member of the Bar undoubtedly owes a duty to
his client and must place before the Court all that
can fairly and reasonable be submitted on behalf of
his client. He may even submit that a particular
order is not correct and may ask for a review of that
order. At the same time, a member of the Bar is an
officer of the Court an owes a duty to the Court in
which he is appearing. He must uphold the dignity
and decorum of the Court and must not do anything
to bring the Court itself into disrepute."
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(ii) In Indian Council of Legal Aid v. Bar Council of India
[1995 (1) SCC 732], the Hon'ble Apex Court, at Paragraph 3, held
as under:
"3........................It is generally believed that
members of the legal profession have certain social
obligations, e.g., to render 'pro bono publico' service
to the poor and the under-privileged. Since the duty
of a lawyer is to assist the court in the
administration of justice, the practice of law has a
public utility flavour and, therefore, he must strictly
and scrupulously abide by the Code of Conduct
behaving the noble profession and must not indulge
in any activity which may tend to lower the image of
the profession in society.................................."
(iii) In Re: Sanjeev Datta, [1995 CriLJ 2910], the Hon'ble
Supreme Court held as under:
"20. The legal profession is a solemn and serious
occupation. It is a noble calling and all those who
belong to it are its honourable members. Although
the entry to the profession can be had by acquiring
merely the qualification of technical competence,
the honour as a professional has to be maintained
by its members by their exemplary conduct both in
and outside the Court. The legal profession is
different from other professions in that what the
lawyers do, affects not only an individual but the
administration of justice which is the foundation of
the civilised society. Both as a leading member of
the intelligentsia of the society and as a responsible
citizen, the lawyer has to conduct himself as a model
for others both in his professional and in his private
and public life. The society has a right to expect of
him such ideal behavior. It must not be forgotten
that the legal profession has always been held in
high esteem and its members have played an
enviable role in public life. The regard for the legal
and judicial systems in this country is in no small
measure due to the tireless role played by the
stalwarts in the profession to strengthen them. They
took their profession seriously and practice it with
dignity, deference and devotion. If the profession is
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to survive, the judicial system has to be vitalised. No
service will be too small in making the system
efficient, effective and credible."
(iv) As regards the right and status of lawyers and duty of the
advocates, in O.P. Sharma and others v. High Court of
Punjab and Haryana, [(2011) 6 SCC 86], the Hon'ble Supreme
Court held as under:
"The role and status of lawyers at the beginning of
sovereign and democratic India is accounted as
extremely vital in deciding that the nation's
administration was to be governed by the rule of
law. They were considered intellectuals amongst the
elites of the country and social activists amongst the
downtrodden. The role of lawyers in the framing of
the Constitution needs no special mention. In a
profession with such a vivid history it is regretful, to
say the least, to witness instances of the nature of
the present kind. Lawyers are the officers of the
court in the administration of justice. The Bench as
well as the Bar has to avoid unwarranted situations
or trivial issues that hamper the cause of justice and
are in no one's interest. A lawyer cannot be a mere
mouthpiece of his client and cannot associate
himself with his client in maligning the reputation of
a judicial officer merely because his client failed to
secure the desired order from the said officer. A
deliberate attempt to scandalise the court which
would shake the confidence of the litigating public in
the system and would cause a very serious damage
to the name of the judiciary."
(v) In Re: Rameshwar Prasad Goyal [(2014)1 SCC 572], the
Hon'ble Supreme Court, held as under:
"10. Lawyers play an important part in the
administration of justice. The profession itself
requires the safeguarding of high moral standards.
As an officer of the court the overriding duty of a
lawyer is to the court, the standards of his profession
and to the public. Since the main job of a lawyer is
to assist the court in dispensing justice, the
members of the Bar cannot behave with doubtful
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scruples or strive to thrive on litigation. Lawyers
must remember that they are equal partners with
judges in the administration of justice. If lawyers do
not perform their function properly, it would be
destructive of democracy and the rule of law. (Vide:
Manak Lal v. Dr. Prem Chand Singhvi & Ors. AIR 1957
SC 425; Smt. Jamilabai Abdul Radar v. Shankarlal
Gulabchand & Ors. AIR 1975 SC 2202; The Bar
Council of Maharashtra v. M.V. Dabholkar AIR 1976
SC 242; S.P. Gupta & Ors. v. President of India & Ors.
AIR 1982 SC 149 and Sheela Barse v. State of
Maharashtra (1995) 3 SCC 619).
12. Law is no trade, briefs no merchandise. An
advocate being an officer of the court has a duty to
ensure smooth functioning of the Court. He has to
revive the person in distress and cannot exploit the
helplessness of innocent litigants. A willful and
callous disregard for the interests to the client may
in a proper case be characterised as conduct
unbefitting an advocate. [See P, an Advocate, In.re
(AIR 1963 SC 1313), T.C. Mathai & Anr. v. District &
Sessions Judge, Thiruvananthapuram (AIR 1999 SC
1385), D.P. Chadha v. Triyugi Narain Mishra & Ors.
(AIR 2001 SC 457) and Smt. Poonam v. Sumit Tanwar
(AIR 2010 SC 1384].
(vi) In Himalayan Co-operative Group Housing Society v.
Balwan Singh [(2015) 7 SCC 373], the Hon'ble Supreme Court,
held as under:
"23. Apart from the above, in our view lawyers
are perceived to be their client's agents. The law of
agency may not strictly apply to the client-lawyer's
relationship as lawyers or agents, lawyers have
certain authority and certain duties. Because
lawyers are also fiduciaries, their duties will
sometimes more demanding than those imposed on
other agents. The authority-agency status affords
the lawyers to act for the client on the subject
matter of the retainer. One of the most basic
principles of the lawyer-client relationships is that
lawyers owe fiduciary duties to their clients. As part
of those duties, lawyers assume all the traditional
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(F.No.9038553/2021) :: 46 ::
duties that agents owe their principals and, thus,
have to respect the client's autonomy to make
decisions at a minimum, as to the objectives of the
representation. Thus, according to generally
accepted notions of professional responsibility,
lawyers should follow the client's instructions rather
than substitute their judgment for that of the client.
The law is now well settled that a lawyer must be
specifically authorised to settle and compromise a
claim, that merely on the basis of his employment
he has no implied or ostensible authority to bind his
client to a compromise/settlement. To put it
alternatively that a lawyer by virtue of retention, has
the authority to choose the means for achieving the
client's legal goal, while the client has the right to
decide on what the goal will be. If the decision in
question falls within those that clearly belong to the
client, the lawyers conduct in failing to consult the
client or in making the decision for the client, is
more likely to constitute ineffective assistance of
counsel."
(vii) In R. Muthukrishnan v. The Registrar General of the
High Court of Judicature at Madras [(2019) 16 SCC 407], the
Hon'ble Apex Court held as under:
"23. The role of Lawyer is indispensable in the
system of delivery of justice. He is bound by the
professional ethics and to maintain the high
standard. His duty is to the court to his own client, to
the opposite side, and to maintain the respect of
opposite party counsel also. What may be proper to
others in the society, may be improper for him to do
as he belongs to a respected intellectual class of the
society and a member of the noble profession, the
expectation from him is higher. Advocates are
treated with respect in society. People repose
immense faith in the judiciary and judicial system
and the first person who deals with them is a lawyer.
Litigants repose faith in a lawyer and share with
them privileged information. They put their
signatures wherever asked by a Lawyer. An advocate
is supposed to protect their rights and to ensure that
untainted justice delivered to his cause.
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24. The high values of the noble profession have to
be protected by all concerned at all costs and in all
the circumstances cannot be forgotten even by the
youngsters in the fight of survival in formative years.
The nobility of legal profession requires an Advocate
to remember that he is not over attached to any
case as Advocate does not win or lose a case, real
recipient of justice is behind the curtain, who is at
the receiving end. As a matter of fact, we do not
give to a litigant anything except recognizing his
rights. A litigant has a right to be impartially advised
by a lawyer. Advocates are not supposed to be
money guzzlers or ambulance chasers. A Lawyer
should not expect any favour from the Judge and
should not involve by any means in influencing the
fair decision-making process. It is his duty to master
the facts and the law and submit the same precisely
in the Court, his duty is not to waste the Courts'
time.
25. It is said by Alexander Cockburn that "the
weapon of the advocate is the sword of a soldier, not
the dagger of the assassin". It is the ethical duty of
lawyers not to expect any favour from a Judge. He
must rely on the precedents, read them carefully
and avoid corruption and collusion of any kind, not
to make false pleadings and avoid twisting of facts.
In a profession, everything cannot be said to be fair
even in the struggle for survival. The ethical
standard is uncompromisable. Honesty, dedication
and hard work is the only source towards perfection.
An Advocate conduct is supposed to be exemplary.
In case an Advocate causes disrepute of the Judges
or his colleagues or involves himself in misconduct,
that is the most sinister and damaging act which can
be done to the entire legal system. Such a person is
definitely deadwood and deserves to be chopped
off."
27. In the light of the above discussions and decisions, we are of the
considered view that instant writ petition does not satisfy the requirements
of a public interest writ petition, there is suppression of facts, filing false
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affidavit, abuse of process of law, and thus, it is a frivolous writ petition, to
be dismissed with appropriate costs.
28. In this context, let us consider the decision of the Hon'ble Apex
Court in Indian Council for Enviro-Legal Action v. Union of India (UOI)
and Ors. reported in (2011) 8 SCC 161, wherein, at paragraphs 191 & 192, it
was observed as under:
"191. In consonance with the principles of equity,
justice and good conscience, Judges should ensure that
the legal process is not abused by the litigants, in any
manner. The court should never permit a litigant to
perpetuate illegality by abusing the legal process. It is
the bounden duty of the court to ensure that dishonesty
and any attempt to abuse the legal process must be
effectively curbed and the court must ensure that there
is no wrongful, unauthorized or unjust gain for anyone
by the abuse of the process of the court. One way to
curb this tendency is to impose realistic costs, which the
respondent or the defendant has, in fact, incurred, in
order to defend himself in the legal proceedings. The
courts would be fully justified even imposing punitive
costs where legal process has been abused. No one
should be permitted to use the judicial process for
earning undeserved gains or unjust profits. The court
must effectively discourage fraudulent, unscrupulous
and dishonest litigation.
192. The court's constant endeavour must be to
ensure that everyone gets just and fair treatment. The
court while rendering justice must adopt a pragmatic
approach and in appropriate cases, realistic costs and
compensation be ordered, in order to discourage
dishonest litigation. The object and true meaning of the
concept of restitution cannot be achieved or
accomplished unless the courts adopt a pragmatic
approach in dealing with the cases."
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29. As we have intended to impose costs, in exercise of the powers
under Article 226 of the Constitution of India, the District Collector, Kollam
District, is imleaded as additional respondent No.9, for implementation of
the judgment of this Court.
30. Considering the totality of the facts and circumstances, we dismiss
the writ petition imposing a sum of Rs. 25,000/- (Rupees twenty-five
thousand only) as costs, to be paid by the petitioners, to Account No.
3922992468-4 of the State Bank of India, Trivandrum City (70028), P. B. No.
22, M. G. Road, Statue - 695 001 with IFS Code SBIN0070028, maintained for
providing financial aid to the children in the State of Kerala, who are
suffering from rare diseases, within three weeks from the date of receipt of a
copy of this judgment, failing which, the District Collector, Kollam/
additional 9th respondent, is directed to initiate recovery proceedings under
the provisions of the Kerala Revenue Recovery Act, 1968.
sd/-
S. MANIKUMAR
CHIEF JUSTICE
sd/-
SHAJI P. CHALY
JUDGE
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