9911796707
TMI Blog2003 (12) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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. 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 should necessarily act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act. It is not in dispute that the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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. - Mr. S. Rajendra Babu Mr. H.K. Sema JJ. JUDGMENT 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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-inlaw 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal 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 eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
