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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.

1