1. Heard Mr.N.D.Nanavati learned Senior Counsel with Mr.S.K.Patel learned advocate for the petitioner.
2. Draft amendment is tendered. Amendment is granted.
3. By way of this petition under Article 226 of the Constitution of India, challenge is made to the order dated 29.10.2012, passed by “Justice D.K.Trivedi Commission of Inquiry ('the Commission' for short)”, once again directing the petitioner to appear before it as a witness.
4. The said Commission is appointed by the Government, under the Commission of Inquiry Act, inter-alia, to inquire into the facts and circumstances leading to the death of two school boys Dipesh and Abhishek studying in the Gurukul at Motera, which is run by the petitioner/his organization. In the opinion of the Commission, amongst other persons, evidence of the petitioner and his son is relevant and therefore, witness summons were issued to both of them on 21.3.2011. In continuation of said summons an order was passed on 21.6.2011 directing the petitioner to remain present on 19.7.2011 and his son on 21.7.2011. This has not materialised so far, qua the petitioner.
5. In the present petition, Annexure-A is the application made by the petitioner Exh. 2442 dated 17.10.2012 and orders passed thereon, starting from 18.10.2012 to 29.10.2012. The prayers made before the Commission, in the said application, on which the impugned order is passed, were as under:
“1. This Hon'ble Commission may be pleased to treat affidavit on record vide exhibit no. 2272 as my evidence and shall drop the applicant from being further examined.
Or in the alternative
2. If the Hon'ble Commission or Advocate representing State or Advocate representing Vaghela Brothers wants to ascertain anything more than submitted by the applicant in the above mentioned affidavit, then specific questions be sent and the applicant shall accordingly reply the same by way of affidavit.
Or in the alternative
3. The Hon'ble Commission may appoint a Commission to take the evidence at some other place at our cost.
Or in the alternative
4. The Hon'ble Commission may kindly fix the sitting of the Hon'ble Commission for recording evidence of the applicant at Ashram Or in the alternative
5. The Hon'ble Commission may be pleased to take the evidence by the mode of Vidoe Conferencing as stated above at our cost.”
By the impugned order, the Commission declined to accede to any of the alternatives suggested by the petitioner and maintained that the petitioner should appear before it at its office. It is this order dated 29.10.2012 which is the subject matter of this petition.
6. Learned Senior Counsel Mr. Nanavati for the petitioner has mainly contended that the petitioner is not relevant witness and he ought not to have been summoned at all. It is also agitated that the Commission is putting questions beyond the terms of reference and to substantiate this argument, reference is also made to the evidence of the son of the petitioner, who is examined as late as on 11.11.2012, which is placed on record, by draft amendment. Learned Senior Counsel has also pointed out various provisions of the Code of Civil Procedure, as well as the Commission of Inquiry (Central) Rules. It is the grievance of the petitioner that only with a view to prejudice the reputation and dignity of the petitioner, and interest of the institutions run by him, the petitioner is summoned as witness by the Commission. It is also apprehended that the petitioner is likely to be put questions, which may tarnish his image. Learned counsel however stated that he is not pressing the point of comparison with other commission as referred to in para: 12 and 13 of the application, on which the impugned order is passed.
7.1 At the out set, it needs to be recorded that the petitioner, alongwith his son had earlier approached this Court by preferring a petition being Special Civil Application No: 9402/2011, the reference to which is made in this petition in para-24, which reads as under:
“The petitioner has not filed any other petition with regard to the present subject matter either before this Hon'ble Court or before the Hon'ble Apex Court, except SCA No. 9402/2011 was filed when the issue of Black Magic was pending in the Apex Court.”
7.2 What was the challenge in the said petition, whether the said petition is pending and if disposed of, what was the out come thereof, nothing is indicated in this petition and therefore, on being asked, Registry has made available papers of the said petition to the Court. From the papers of Special Civil Application No: 9402/2011, it transpires that, in the said petition challenge was made to the action of the Commission of summoning the petitioner and his son as witnesses. The order dated 21.3.2011 and consequential order dated 21.6.2011, passed by the Commission in that regard were prayed to be quashed and set aside. Be it noted that by the said order dated 21.3.2011 and 21.6.2011 petitioner was directed to remain present before the Commission on 19.7.2011, to give evidence as a witness. Prayer clause of the said petition reads as under :
“A) Admit this petition;
B) Allow this petition by issuing a writ of certiorari or any other appropriate writ, order or direction by quashing and setting aside the order dated 21.6.2011 below Exh. 2211 (Annexure-A) passed by the Hon'ble Justice D.K. Trivedi Commission and thereby, be pleased to allow an application Exh. 2211 and thereby, be pleased to quash and set aside an order dated 21.3.2011 (Annexure-E) issuing summons to the petitioners, in the interest of justice;
C) Further be pleased to hold and declare that no direct witness summons can be issued without assigning the reasons or purpose for which the present petitioners are required to be examined;
D) Pending admission and till final disposal of this petition,grant stay as to execution, operation and implementation of the impugned order dated 21.6.2011 below Exh. 2211 (Annexure-A) and also the execution and implementation of order dated 21.3.2011 (Annexure-E) issuing summons to the petitioners in the interest of justice;
E) Grant such other and further relief(s) in the facts and circumstance of this case.”
7.3 The said petition came to be disposed of by the order of this court dated 9.8.2011, which reads as under:
“ Mr.N.D.Nanavaty, learned Senior Counsel appearing with Mr. Patel seeks permission to withdraw the present petition with a view to file appropriate application before Hon'ble Commission. Without expressing any opinion on merits on the said aspect, permission granted. Disposed of accordingly.”
8. From the contents of above para, two aspects become clear. Firstly, the bone contention raised by the petitioner in this petition that the petitioner is not relevant witness and he ought not to have been summoned at all by the Commission, has attained finality, against him by the earlier round of litigation. Secondly, there is concealment of facts in that regard in this petition, which is material fact, which amounts to suppression of material fact by the petitioner. Be it noted that, in this petition, amongst other documents, reliance is also placed on the application dated 9.5.2011 and additional grounds therein dated 23.5.2011, which is placed at Annexure-D collectively. These documents were collectively placed at Annexure-B in Special
thereon was dated 21.6.2011. Said order dated 21.6.2011 was the subject matter in Special Civil Application No. 9402/2011 alongwith order dated 21.3.2011. While placing reliance on the said application Exh. 2211 and annexing the same in this petition at Annexure-D, the petitioner has chosen, consciously, not to place on record of this petition, the order passed thereon dated 21.6.2011 and withdrawal of petition from this Court, wherein, the same was challenged.
9. Learned Counsel for the petitioner has contended that it was at that stage that the petition was withdrawn and in view of the evidence of the son of the petitioner and evidence of other witnesses which is on record, now it is not relevant to summon the petitioner. This contention can not be accepted, since the challenge by the petitioner to the decision of the Commission to summon the petitioner as witness and its consequential order directing the petitioner to remain present before it in July, 2011, was already given up by the petitioner before this Court as referred above and it can not be permitted to be agitated time and again.
10. After having held that no exception can be made to the decision of the Commission in summoning the petitioner as a witness, coming to the next question of considering the prayers made by the petitioner before the Commission, in the application on which the impugned order is passed, it is found that various options were given by the petitioner to the Commission, such as, the place of work of the Commission be shifted to Ashram of the petitioner or that the evidence be taken by the Video Conferencing etc. This court does not find violation of any right, muchless any fundamental right of the petitioner, if the commission does not shift its place of work from the government accommodation to any other private place as per the convenience of the petitioner, or by not acceding to the request of the petitioner to take his evidence by video conferencing at his cost. At this stage, learned
Commission keeping in view those prayers is sought to be assailed on different ground before this Court, viz. that on the basis of the evidence of son of the petitioner, it is quite likely that irrelevant questions, including the questions beyond the scope of the inquiry will be put to the petitioner or that the petitioner will not be treated properly either by the persons present in the Commission or by the persons waiting out side the premises of the Commission and that would tarnish the reputation of the petitioner. In my view, this court in exercise of powers under Article 226 of the Constitution can neither regulate the functioning of the Commission that what type of questions should be put to the witnesses, nor as to what should be the conduct of, or towards the witnesses. To address the apprehension of the petitioner in this regard, in my view would be beyond the scope of this petition. Therefore I find that no relief can be granted to the petitioner on that count either.
11. It also needs to be recorded that, from the tenor of the orders passed by the Commission which are on record of this petition, particularly orders dated 18.10.2012, 19.10.2012, 23.10.2012 and 29.10.2012 which is part of Annexure-A to the petition, order dated 23.3.2011 Annexure-F to the petition and order dated 8.9.2011 which is part of Annexure-D to the petition, a picture emerges where the Commission has, on its knees, with folded hands craved for the convenience of the petitioner and his son to record their evidence before it and this has continued for a period of more than one and half year. Even after unsuccessfully challenging the action of the Commission of summoning them as witnesses for more than one year, neither the petitioner nor his son, appeared before the Commission. At this juncture, reference can be made to the order dated 21.3.2011 passed by the Commission, which, inter-alia, reads thus:
“Today, when the Commission was required to fix date of examination of Sant Shri Asaramji & his son Mr. Narayan Sai, a shocking statement is made by Mr. Uday Sangani which is supported by Mr. Gupta that both the witnesses viz. Sant Shri Asaramji & his son Mr. Narayan Sai will not remain present before the Commission and hence they may not even accept the summons and the Commission may serve the summons to the respective witnesses. ”
Least, it is observed that the majesty of law could and ought to have been preserved in more dignified manner by the Commission. Better late than never. Now when the Commission has asserted to enforce the law, the challenge is made before this court invoking Article 226 of the Constitution of India, the merits and method of which is discussed here above.
12. On overall consideration I find that this petition, not only suffers from the vice of suppression of material facts as noted above, even on merits, it is a frivolous petition and no relief deserves to be granted to the petitioner and the petition deserves to be dismissed in limine. It also needs to be recorded that filing of petition before the Court of law is not like buying a lottery ticket that if luck favours, might bring a windfall, even illegitimate, but would cost no more than the expenses of litigation. Reference in this regard may be made to the judgement of Honourable the Supreme Court of India in the case of Rakesh Kumar Goel v. U.P. State Industrial Development Corporation Ltd. & Ors, reported in AIR 2010 SC 2451. Keeping this principle in mind, according to me, cost is also required to be imposed on the petitioner.
13. In the facts and circumstances and for the reasons recorded above, I arrive at the judgment and pass order as under.
(A) There is no illegality in the impugned order passed by the Commission and the petitioner is not entitled to any relief.
(B) This petition is frivolous and there is also suppression of material facts. Therefore the petition is required to be dismissed with cost.
(C) The petition is dismissed with cost of Rs. 25,000/-. The amount of cost shall be deposited with the registry of this court within a period of six weeks from today.
[PARESH UPADHYAY,J.] mandora/