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CASE NO.: Writ Petition (civil)  42 of 2001

PETITIONER: N.C. Dhoundial                               

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 04/12/2003

BENCH: P.V. Reddi

JUDGMENT: JUDGMENT

With

Transfer Petition (Civil) Nos. 180, 261, 283, 293, 850  & 877  of 2001 and Special Leave Petition (Civil) Nos.  8220, 11182, 11186 & 14392 of 2001. P. Venkatarama Reddi, J.

A search was conducted by the officials of CBI on  25.03.1994 at the residential house of Shri Ashok Kumar  Sinha\027an officer of the Telecom Department (hereinafter  referred to as ’the complainant’) at Ranchi. This was  followed by searches of the houses of his close relations and   contractors at Patna and Ranchi. In between he was  admitted to hospital on two occasions.  On discharge from  CCI Hospital at Ranchi  on 3.4.1994, the petitioner was  arrested "with a view to interrogate him in custody" and  produced before the Court of Special Judge, CBI, Ranchi  with a prayer to remand him to policy custody for 10 days.  The Special Judge remanded him to judicial custody for a  fortnight with a direction to the Jail Superintendent to get  him medically examined and to submit the report.  On  receipt of the report of the Jail Superintendent, he was  remanded to police custody for seven days and there was a  further order to release him on provisional bail for one  month from 13.4.1994. The Court also directed that he  should be admitted in CCI Hospital and interrogated there.   The provisional bail was confirmed later on subject to certain  conditions. The CBI, after obtaining sanction, filed a charge  sheet on 18.8.1998 under Sections 13(2) read with Section  13(1)(e) of the  Prevention of Corruption Act for the  possession of assets disproportionate   to the known sources  of income.         A day thereafter, i.e. on 19.8.1998, the National  Human Rights Commission (for short ’NHRC’) received a  complaint from Mr. A.K. Sinha alleging illegal detention from  25.3.1994 to 3.4.1994. He also alleged harassment and  torture  by the CBI officials including Mr. N.C. Dhoundial,  S.P., CBI (Petitioner in WP (C) 42/2001) .  He alleged that a  false case was registered against him for extraneous reasons  on account of the antagonistic attitude of the S.P.\027          Mr. Dhoundial, towards him. The complainant alleged that  the action of the CBI  in causing his unlawful detention  during the period 25.3.1994 to 3.4.1994 and the harsh  treatment meted out to him aggravated his disease of  cancer (which was detected later) and a major surgery had  to be performed at Tata Memorial Cancer Hospital, Bombay

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to save his life.  Seven officers of CBI were named in the  complaint who, according to the complainant, were directly  or indirectly responsible for his illegal detention.  NHRC took  cognizance  of the complaint and called for a report from the  Director, CBI.  On consideration of the report, the learned  Member of NHRC found that there was no substance in the  complaint and that no action was called for. The learned  Member observed that there was no truth  in the allegation  of harassment and denial of proper medical attention. It was  also observed that the complainant never complained to the   Court that he was being ill-treated by the CBI officers.  The  learned Member further observed that "there was  considerable force in the stand taken by the CBI that this  complaint has been filed only to demoralize the CBI officers  who are zealously investigating."  Proceedings to this effect  were drawn up on 6.11.1998.  The complainant then filed a  petition on 21.9.1999 pointing out certain facts which  according to him missed the attention of the NHRC while  taking the decision recorded on 6.11.1998. The petitioner  prayed for reopening the case and to take a fresh decision  after giving  him adequate opportunity to present his case.         The learned Chairman of NHRC, by his proceeding  dated 10.3.2000 treated the petition filed by Shri A.K. Sinha  as review petition and having found a prima facie case of  illegal detention of the complainant by the CBI officials  during the period 25.3.1994 to 3.4.1994, thought it fit to  recall the findings recorded in the proceeding dated  6.11.1998 and to further proceed with the enquiry in the  matter.  Accordingly, show cause notices were issued to four  CBI officials namely, Shri N.C. Dhoundial, Shri Narayan Jha,  Shri P.K. Panigrahi and Shri B.N. Singh as to why  appropriate recommendation should not be made to the  Competent Authority for initiating disciplinary action and  such other action as may be found expedient.  On receipt of  replies from the concerned officials of the CBI, the learned  Chairman, by his proceeding dated 12.6.2000, rejected the   version of the CBI officials, over-ruled the objections raised  by them on points of law and held that the complainant was  in de facto custody of the said officials without authority of  law during the period 25.3.1994 to 3.4.1994 resulting in the  violation of his human rights.  The Commission directed the  Director, CBI to initiate appropriate disciplinary action for  the misconduct of the four officials arising out of the illegal  detention of the complainant Shri A.K. Sinha.  It was made  clear that the direction would not in any manner affect the  prosecution of Shri Sinha for the offences under Prevention  of Corruption Act.  It may be noted that before recording its  findings and giving directions as above, the Commission did  not afford personal hearing or the opportunity to adduce  evidence to the writ petitioner and other officials.         Questioning the said order of NHRC, Shri P.K.  Panigarhi, the then Inspector, CBI  filed a Writ Petition\027 CWJC 2454/2000 under Article 226 in the Patna High Court  (Ranchi Bench). The learned Judge dismissed the writ  petition by an order dated 14.8.2000.  The learned Judge  observed that all the contentions raised by the writ  petitioner were considered by NHRC and he found no reason  to interfere with the impugned order.  However, the learned  Judge made it clear that the order in question was in the  nature of recommendation and disciplinary proceedings as  and when initiated have to be disposed of independently on  the basis of the evidence brought on record.  Against this  order in the Writ Petition Shri Panigrahi filed an appeal\027LPA  No. 309/2000 (R).  By a speaking  order dated 22.1.2001,  the Division Bench admitted the appeal as the appeal raised

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important and debatable questions.  Legal questions arising  in the appeal were broadly  indicated by the Division Bench.    While ordering notice to NHRC, status-quo with respect to  the appellant was directed to be maintained.  Questioning  this interim order passed pending the LPA, the complainant  Shri A.K. Sinha filed SLP (C) No. 14392/2001.  NHRC filed   SLP (C) 8220/2001 against the same interim order.   Subsequent to the admission of LPA,  two other CBI  officials  Shri Bishwanath Singh, the then SI, CBI and Shri   N. Jha, the then Deputy SP, CBI also filed writ petitions  under Article 226 of the Constitution.  The learned Single  Judge, following the interim order passed in LPA, granted an  order of status-quo in regard to those writ petitioners also.   It was further ordered that the Writ Applications shall be  heard after the disposal of LPA. Assailing this order,  the  complainant A.K. Sinha filed SLP (c) Nos. 11182/2001 and  11186/2001.  While so, Shri N.C. Dhoundial, the then SP,  CBI, Ranchi had directly filed Writ Petition (c) No. 42/2001  under Article 32 in this Court questioning the NHRC’s order  dated 12.6.2000.  This Court directed issuance of notice  on  15.1.2001. Thereafter, a bunch of transfer petitions, three  by A.K. Sinha  and three by NHRC came to be filed in this  Court with a prayer to transfer the LPA and Writ Petitions to  the file of this Court and to hear the same along with WP (C)  No.  42 of 2001 filed by N.C. Dhoundial.  The ground of  transfer is that similar issues are involved for adjudication in  the LPA/Writ Petitions pending in the High Court and the  Writ Petition pending in this Court.  The SLPs, TPs and the Writ Petition have been grouped  together and posted for final disposal.  That is how these  11  matters are before us.          Before proceeding further, it is necessary to make a  brief reference to the stand taken by the officials of CBI on  the factual aspects relating to the alleged detention between  25.3.1994 to 3.4.1994 and the findings recorded by NHRC  on this disputed issue.  The factual account given by the CBI officials is as  follows:         After the search on 25.3.1994 the complainant was  asked to accompany the DSP, CBI to the SP’s  office at  Ranchi.  During interrogation, the complainant disclosed that  he kept certain papers, pass-books and keys of lockers in a  brief case handed over to one Ranjan Pandey, a contractor  of his department at Patna.  He volunteered to accompany  the CBI officials to Patna  with a view to assist them in the  investigation.  Accordingly,  Shri N. Jha, Shri Panigrahi and  Shri B.N. Singh together with the complainant started on the  journey to Patna in the evening.  After reaching the outskirts  of Ranchi. Sri Sinha complained of chest pain and wanted to  be examined at a private nursing home named by him.   Accordingly, he was taken to that hospital but the doctor  concerned was not available.  Hence, on the request of the  complainant, he was taken to Central Coalfield Hospital at  Ranchi and was admitted in the Hospital.  The CBI  officials  left the hospital after his family members came to the  hospital to attend on him.  On the morning of 26.3.1994, he  was discharged from the hospital after certain tests including  ECG were conducted.  The complainant then expressed his  preparedness to go to Patna  by air.  He bought his own  ticket and accompanied the CBI officers to Patna.  On search  of the house of Shri Ranjan Pandey  at Patna, the  brief case  could not be found. However, certain papers were seized  from his residence.  Then the houses of the two close  relatives of the complainant were searched till late night that  day on the basis of the information furnished by him.  On

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completion of the searches, the CBI officers stayed in the  Coal India Guest House at Patna.  The petitioner volunteered  to stay with them  that night on the ostensible ground that  he felt embarrassed to stay with his relatives in the  aftermath of the raids.  On 27.3.1994, the flight to Ranchi  was cancelled and there was some uncertainty in the time  schedule of the trains brought for Ranchi on account of Holi  festival  the next day.  Hence, the officials along with the  complainant took a bus from Patna on the night of March  27th and  reached Ranchi in the early morning hours   of  March 28th.  The complainant was requested to attend the  CBI office at Ranchi at 8.30 a.m. Accordingly,  he came to  the CBI office and in the course of questioning he disclosed  that one more brief case with important documents was kept  with another contractor.  On a search of the said  contractor’s house, nothing incriminating was found.  While  returning to the CBI office, the petitioner again reported that  he was not feeling well and requested that his father-in-law  be informed. Accordingly, his father-in-law came to the CBI  office and both of them left for CCI Hospital.  His father-in- law got him admitted  in the hospital and also deposited  money for treatment.  On 1.4.1994, even while the  complainant was in hospital, he came to the CBI office with  two brief cases said to have been kept with the two  contractors.  Those brief cases were seized in the presence  of witnesses in the CBI office. The brief cases did not contain  any incriminating material.  The complainant without  participating in further interrogation went back to the CCI  Hospital.  He was discharged from the CCI Hospital on  3.4.1994 at 12 noon and on the request of the IO went to  the CBI office.  As he did not cooperate with the  investigating agency and did not even come forward to  produce the documents relating to investments etc.  admitted by him,  it was decided to arrest and interrogate  him in custody.  That is why he was arrested on 3.4.1994  and produced before the Special Judge, CBI, Ranchi with a  prayer to remand him to police custody.         The CBI officials denied having kept the police personnel  in the hospital either on 25.3.1994 or on the second  occasion. They relied on the entries in the case diary in  support of their contention that he was not arrested till  3.4.1994. Regarding the steps taken by them for providing  medical attendance to the complainant on the first day i.e.  25.3.1994, the stand of CBI officials has been that it was  done on humanitarian considerations, but not because he  was in their custody.         The Commission was not prepared to accept the  version of the CBI officials. The relevant comment made by  the learned Chairman of NHRC to discredit their version is  extracted hereunder: "The Commission has given its anxious  consideration but it is not inclined to accept the  above explanation because it is unreal to expect  that a wrong doer will make a record of his wrong  actions.  Absence of such record in the case  diaries prepared by a noticee cannot be relied on  to disprove the otherwise established fact of the  illegal detention of Shri A.K. Sinha during the  aforesaid period.  Had Shri Sinha not been in  actual custody of the CBI officers, there was no  occasion for them  to have provided him the  medical aid and attention and to keep him under  constant surveillance.  More so, as per the officers’  own showing, they were accompanying the  petitioner from Ranchi to Patna and back for the

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purpose of making recoveries of certain  incriminatory articles.  The Commission, therefore,  finds no substance in this objection of the noticee  officers and rejects the same."

Thus the initiative taken by the CBI officers in joining  him in the hospital when he complained of chest pain and  the factum of complainant accompanying  the CBI officials to  Patna and coming back with them were relied upon by the  Commission to come to the conclusion that the complainant  was in the actual custody of CBI officers.  The Commission  also observed that the complainant was under constant  surveillance. Though it is not elaborated, the Commission  probably meant that he was being watched while he was in  hospital.          It is to be noted that the Commission did not afford  personal hearing to the officials who were put on notice nor  any opportunity of adducing evidence was afforded.  The  complaint was decided on the basis of averments in the  review petition and the replies submitted by the officials  concerned.  The plea of the officials was tested broadly on  the basis   of probabilities and a conclusion was reached that  the officials concerned were guilty of human rights violation.  The three legal objections raised by the CBI officials  were over-ruled by the Commission.  Firstly, it was held that  by virtue of Section 13 of the Protection of  Human Rights  Act, 1993, the power of review conferred on the civil court  was available to the Commission. As the earlier order was  not a decision on merits but merely an order abstaining   from further enquiry the Commission felt that there was no  bar to reconsider the entire issue in the interest of justice.   The second objection based on Regulation 8(1)(b) of NHRC  (Procedure Regulations) which bars complaints  with regard  to matters that are ’subjudice’ was rejected with the  observation that the question of violation of human rights as  a result of alleged unauthorized detention of the complainant  was not subjudice.  The other important objection that the  Commission is debarred from enquiring into the matter after  the expiry of one year from the date on which the alleged  illegal detention took place as per the mandate of Section  36(2)  was answered by the Commission in the following  words: "The violation of human rights is a continuing  wrong unless due reparation is made.  It gives rise  to recurring cause of action till redressal of the  grievance. The Protection of Human Rights Act,  1993 has been enacted with the object of  providing better protection of Human Rights and it  cannot be assumed that the mere lapse of a  certain period would be sufficient  to render the   violation immune from the remedy of redressal of  the grievance."

We cannot endorse the view of the Commission.  The  Commission which is an ’unique expert body’ is, no doubt,   entrusted with a very important function of protecting the  human rights, but, it is needless to  point out that the  Commission has no unlimited jurisdiction nor does it  exercise plenary powers in derogation of the statutory  limitations.  The Commission, which is the creature of  statute, is bound by its provisions.  Its duties and functions  are defined and circumscribed by the Act.  Of course, as any  other statutory functionary,  it undoubtedly has incidental or  ancillary powers to effectively exercise its jurisdiction in  respect of the powers confided to it but the Commission

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should necessarily act within the parameters prescribed by  the Act creating it and the confines of jurisdiction vested in it  by the Act.  The Commission is one of the fora which can  redress the grievances arising out of the violations of human  rights.  Even if it is not in a position to take up the enquiry  and to afford redressal on account of certain statutory  fetters or handicaps, the aggrieved persons are  not without  other remedies.  The assumption underlying the observation  in the concluding passage extracted above proceeds on an  incorrect premise that the person wronged by violation of  human rights would be left without remedy if the  Commission does not take up the matter. Now, let us look at Section 36 of the Protection of  Human Rights Act, which reads thus: 36. Matters not subject to jurisdiction of the  Commission \026 "(1) The Commission shall not  inquire into any matter which is pending before a  State Commission or any other Commission duly  constituted under any law for the time being in  force.

(2) The Commission or the State Commission shall  not inquire into any matter after the expiry of one  year from the date on which the act constituting  violation of human rights is alleged to have been  committed."  

Section 36(2) of the Act thus places an embargo against the  Commission enquiring into any matter after expiry of one  year from the date of the alleged act violative of human  rights.  The caption or the marginal heading to the Section   indicates that it is a jurisdictional bar.  Periods of limitation,  though basically procedural in nature, can also operate as  fetters on jurisdiction in certain situations.  If an authority is  needed for this proposition the observations of this Court in  S.S. Gadgil Vs. M/s Lal & Co. [AIR 1975 SC 171] may  be recalled. Construing Section 34 of the Income Tax Act,  1922 the Court observed thus: "Again the period prescribed by Section 34 for  assessment is not a period of limitation. The  section in terms imposes a fetter upon the power  of the Income-tax Officer to bring to tax escaped  income."\005   The language employed in the marginal heading is another  indicator that it is a  jurisdictional limitation.  It is a settled  rule of interpretation that the section heading or marginal  note can be relied upon to clear any doubt or ambiguity in  the interpretation of the provision and to discern the    legislative intent  (vide Uttam  Das  vs.  S.G.P.C. [(1996)  5 SCC 71] and Bhinka Vs. Charan Singh [AIR 1959 SC  960].         In fact, Section 36(2) does not mince the words and  the language used is clear and categorical. The marginal  note to the Section is being referred to only to consider  whether the bar created by Section 36(2) has a bearing on  the power or jurisdiction of the Commission. The bar under Section 36(2) is sought to be got over by  the Commission by invoking the theory of continuing wrong  and the recurring cause of action.  According to the  Commission, every violation of human right is a continuing  wrong until and unless due reparation is  made.  We find it  difficult to accept this proposition propounded by the  Commission.  The short answer to this view point is that  such a view, if accepted, makes Section 36(2) practically a

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dead letter.  Moreover, going by the language employed in  Section 36(2), we do not think that the concept of  continuing wrong  could  at  all  be  pressed  into service  in   the instant case. The time limit prescribed is referable to the  alleged ’act’ constituting the violation of human rights.  In a  case like illegal detention, the offensive act must be deemed  to have been committed when a person is placed under  detention and it continues so long as the affected person  remains under illegal detention. The commission of offensive  act is complete at a particular point of time and it does not  continue to be so even after the unauthorized detention  ends.  It is not in dispute that the complainant was produced  before the Special Judge on 3.4.1994 and remand was  obtained in accordance  with the procedure prescribed by  law.  The alleged act of unauthorized detention which gives  rise to violation of human rights ceased on 3.4.1994 and it  does not perpetuate thereafter.  It is not the effect of illegal  detention which is contemplated by Section 36(2) but it is  the illegal act itself.   It would be a contradiction in terms to  say that the arrest or detention beyond 3.4.1994 was in  accordance with law and at the same time the  arrest/detention continued to be wrongful.  It cannot,  therefore, be brought under the category of continuing  wrong which is  analogous to the expression ’continuing  offence’ in the field of criminal law. It cannot be said that  the alleged  wrongful act of detention repeats itself everyday  even after the complainant was produced before the  Magistrate and remand was obtained in accordance with law.   Beyond 3.4.1994, there was no breach of obligation imposed  by law either by means of positive or passive conduct of the  alleged wrong-doers. To characterize it as a continuing  wrong  is, therefore, inappropriate.  One year period for  taking up the enquiry into the complaint, therefore, comes  to an end by 3.4.1995. Just as in the case of Section 473  Cr.P.C., there is no provision in the Act to extend the period  of limitation of one year.  However, in the procedural  Regulations  framed by the Commission certain amount of  discretion is reserved to the Commission. Regulation 8(1)(a)  inter alia lays down that ’ordinarily’ a complaint in regard to  events which happened more than one year before the  making of the complaint is not entertainable. Irrespective of the validity of the prefacing expression  ’ordinarily’, let us examine the issue from the point of view  of the regulation itself. The Regulation implies that if  extraordinary circumstances exist, the complaint can be  enquired into even after the expiry of one year.  Are there  any extraordinary circumstances made out in this case?  We  find  none in the impugned order of the Commission.  As  already noticed, the petition filed by the complainant was  received by the Commission a day after the charge sheet  was filed though it bears an earlier date. For nearly 4=  years the complainant kept quiet. The explanation given in  the complaint for this long silence was that he was under the  impression that by reporting the matter to NHRC he might  be antagonizing the CBI officials, but, after realizing that  they were not acting fairly and objectively and they  continued to harass him, he thought of filing the petition  before NHRC.   The Commission, on its part, did not advert  to this explanation which is really no explanation at all, nor  did it advert to any extraordinary circumstances justifying  interference after a long lapse of  time prescribed by Section  36(2).  The  Commission thus tried to clutch at the  jurisdiction by invoking the theory of continuing wrong  which, as we held earlier, cannot be invoked at all. In this  view of the matter, the direction given by the Commission to

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the Director of CBI, which has an undoubted effect on the  service career of the writ petitioner, is violative of Article 14  of the Constitution. Before concluding our discussion on this aspect, we  would like to clarify in reiteration of what was said by this  Court in Paramjit Kaur Vs. State of Punjab [(1999) 2  SCC 131] that in a case where the NHRC proceeds to  investigate and inquire into the violation of human rights  pursuant to the directions of this Court under Article 32 of  the Constitution, the bar contained in Section 36(2) will not  apply because in such an event, NHRC does not function  under the provisions of the Act but as an ’expert body’  aiding the Supreme Court in the discharge of its  constitutional power under Article 32.         The question whether Section 13 of the Act empowers  the Commission to exercise the power of review conferred  on the Civil Court and if so, whether the conditions for the  exercise of such power are satisfied, has been debated  before us.  In any case, whether the Commission has the  power to reopen the closed complaint and enquire into the  same in the absence of new material coming to light has  also been debated. These questions need be gone into in  view of our conclusion that the Commission exceeded its  jurisdiction in taking up the enquiry in the face of the bar  created by Section 36(2).         In the result, the order of NHRC dated 12.6.2000 is  quashed and the writ petition (civil) No. 42 of 2001 stands  allowed. The S.L.P. Nos. 8220 of 2001, 11182 of 2001,  11186 and 14392 of 2001 filed against the interim orders  granted by the High Court are dismissed. All the Transfer  Petitions are also dismissed with an observation that the  High Court of Jharkhand may dispose of the related Writ  Petitions/LPA pending on its file with expedition in the light  of this judgment. No costs. \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.J. (S. RAJENDRA BABU)

\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005..J. (P. VENKATARAMA REDDI)

New Delhi,                             \005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005.J. December 11, 2003                (H.K. SEMA) IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No. 42 of 2001 N.C. Dhoundial                                  \005 Petitioner Versus Union of India & Ors.                          \005 Respondents With Transfer Petition (Civil) Nos. 180, 261, 283, 293, 850  & 877  of 2001, Special Leave Petition (Civil) Nos.  8220, 11182, 11186 & 14392 of 2001 and Civil Appeal  No. 3976 of 2002

Dear Brother,

       I am sending herewith the draft judgment in the above  cases for your kind perusal and consideration.         With warm regards,

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Hon’ble Mr. Justice S. Rajendra Babu

Hon’ble Mr. Justice H.K. Sema

Under Regulation 8(1)  ’ordinarily’ complaints of the nature  enumerated in Clauses (a) to (e)  are not entertainable  by  the Commissioner.  Clause (a) reads as follows: "in regard to events which happened  more than one year before the making  of the complaints;"  

The pre-fixure of the word ’ordinarily’ may

RESDENTIAL OFFICE OF HON’BLE MR. JUSTICE P. VENKATARAMA REDDI

I have been directed by the Hon’ble Judge to inform that  Civil Appeal No. 3976/2002 (Balagopalan K.K. (dead)  through his L.Rs. & Anr. Vs. N.H.R.C., New Delhi and others)   listed on 29th October, 2002 before Court No.4, as item  No.9, may be treated to have been delinked from the group  and directed to be listed for hearing before the Court after  seeking directions from Hon’ble Mr. Justice S. Rajendra  Babu.

                                                        G. Sudhakara Rao                                                                     P.A.                                                                10-12-2003

Ld. Registrar (Judicial)

Assistant Registrar (Listing) : He is requested to delete the  matter from the Cause List of 11-12-2003.

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