Ashok Kriplani v. Union of India

2. Being aggrieved from dismissal of his complaint, the petitioner gave a notice under Section 80 Cr.P.C to the said member of the Rajasthan State Human Rights Commission, asking him to explain why a civil suit and criminal prosecution be not initiated against him. Since no reply to the said notice was received, the petitioner made a complaint to President of India under Section 23 of the Protection of Human Rights Act, for removing Mr. H.R. Kudi from the position of Rajasthan State Human Rights Commission. The said complaint was forwarded by the Office of President of India to the Chief Secretary of Rajasthan, for necessary action. Being aggrieved from the course of action adopted by the office of President of India, the petitioner is before this Court with the following prayers:

1. Give interim relief in the form of directing the respondent to recommend the Hon’ble President of India to immediately start processing the complaint of the petitioner;

2. Direct the respondent to recommend the Hon’ble President of India to try the complaint of the petitioner in time bound period of six month from the date of the order of this Hon’ble Court.

3. Section 38 of the Protection of Human Rights Act, 1993, which is relevant for the purpose of this writ petition, reads as under:

38. Protection of action taken in good faith.- No suit or other legal proceeding shall lie against the Central Government, State Government, Commission, the State Commission or any Member thereof or any person acting under the direction either of the Central Government, State Government, Commission or the State Commission in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or any order made thereunder or in respect of the publication by or under the authority of the Central Government, State Government, Commission or the State Commission of any report, paper or proceedings. The petitioner has placed reliance upon the tracking report of India Post, which shows that the letter sent vide Consignment number ED101633850-IN by the petitioner through Delhi High Court Post Office was delivered on 5.3.2012. The case of the petitioner is that it was the response/ rejoinder to the discharge report of the Deputy SP, Kota, which he had sent to the Rajasthan State Human Rights Commission vide the aforesaid consignment.

4. It is not known at what time the consignment bearing number ED101633850-IN was delivered in the Office of Rajasthan State Human Rights Commission. Since the order passed by the member of Rajasthan State Human Rights Commission came to be passed on the very same day on which this consignment is reported to have been delivered at the office of the Commission, it is obvious that it could not have been available on the file of the Commission at the time the complaint was disposed of. The petitioner, who appears in person, states that the Member of the Commission should have waited till 5 pm on 5.3.2012, because he could have sent the response at any time up to 5.3.2012 and he was not required to appear in person. I, however, do not agree with the petitioner. In my view, the response should have been sent well-intime so that it could reach the Commission before the date of hearing fixed by it and could be on the file on 5.3.2012. Since, the response reached the office of the Commission on the same date on which the complaint made by the petitioner was disposed of, the order passed by the Commission, on that date, appears to be justified. Even if it is assumed that the Commission should have waited for the response of the petitioner till 5 pm on 5.3.2012, instead of disposing of the complaint on the same date, that, in my view, does not constitute any offence.

5. As noted earlier, in terms of section 38 of the Protection of Human Rights Act, 1993, no legal proceedings are maintainable against a Member of the Commission, in respect of anything which is in good faith done by him in pursuance of the provisions of the Act. The petitioner, who is present in person, states that he would prove, in appropriate proceedings, that the Member of the Commission did not act in good faith while passing the order dated 5.3.2013. There is a presumption of good faith, in performance of public duties. But, in any case, even if what the petitioner states is taken as correct, that, in my view does not constitute an offence.

6. Section 23 of the Protection of Human Rights Act, 1993, to the extent it is relevant reads as under: “(1A) Subject to the provisions of sub-section (2), the Chairperson or any Member of the State Commission shall only be removed from his office by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such Member, as the case may be, ought on any such ground to be removed.] (2) Notwithstanding anything in sub- section (1), the President may by order remove from office the Chairperson or any other Member if the Chairperson or such other Member, as the case may be,- (a) is adjudged an insolvent; or (b) engages during his term of office in any paid employment outside the duties of his office; or

(c) is unfit to continue in office by reason of infirmity of mind or body; or

(d) is of unsound mind and stands so declared by a competent court; or

(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude,” In case it is presumed that the said member of the Commission passed an order dated 5.3.2012 disposing of the complaint of the petitioner without waiting for his response till 5 pm on that date, that in my view, does not constitute any misbehaviour or incapacity. The petitioner could have challenged the order by way of a writ petition, if no review is entertained, as is contended by him. Therefore, the said Member of the Commission, cannot be removed by the President, for the act which the petitioner has attributed to him.

7. The petitioner states that the issue before the Court is not as to whether the Member of the Commission committed an offence or any act of misbehaviour or not, but the issue before this Court is whether the procedure adopted by the President of India in dealing with his complaint. In my view, in this writ petition, I need not go into the question as to what procedure the President should have adopted on receipt of the complaint of the petitioner for the simple reason that no offence or misbehaviour or incapacity on the part of the member of the Commission is made out from the case set out by the petitioner. For the reasons stated hereinabove, the writ petition is devoid of any merit and is hereby dismissed. It is, however, made clear that the observations made in this order, shall not affect any other proceedings, which the petitioner has initiated or may initiate. There shall be no orders as to costs. V.K. JAIN, J DECEMBER 09, 2013