SUPREME COURT OF INDIA
Justice A.M. Ahmadi and Justice K. Ramaswami.
Writ Petition (Crl.) No. 536 of 1992. D/d. Reported in (1992) 4 SCC 653= 1993 SCC
(Cri) 22. Versus
JUDGMENT
Ahmadi, J. - Does a petitioner-third party who is a total stranger to
the prosecution culminating in the conviction of the accused have any 'locus
standi' to challenge the convict ion and the sentence awarded to the convicts in
a petition brought under Art. 32 of the Constitution? If the answer to this
poser is in the negative this petition must fail on that preliminary ground.
Before we proceed to answer the same it would be advantageous to notice a few
facts. 2. The assassins of General Vaidya were charge-sheeted under Ss. 120B, 302,
307, 465, 468, 471 and 212, I. P.C. read with Ss. 3 and 4 of the Terrorist and
Disruptive Activities Act 1985, (hereinafter referred to as 'the TADA Act') and
Section 10 of the Passport Act. Five persons besides the absconding accused were
put up for trial before the Designated Court, Pune. The Designated Court
acquitted all the accused of the charges levelled against them except accused
No.1 Sukhdev Singh alias Sukha and accused No. 5 Harjinder Singh. alias Jinda
who were convicted for the murder of General Vaidya and for causing bullet
injury to his wife Bhanumati. Accused No. 1 was convicted under Sections 302 and
307, I.P.C. and accused No. 5 was convicted under the said two provisions with
the aid of Section 34, I.P.C. The Designated Court, bearing in mind the gravity
of the crime came to the conclusion that the crime falls into the category of
'the rarest of rare' and awarded the capital punishment, death penalty, for the
murder of General Vaidya and rigorous imprisonment of ten years for the injury
caused to his wife Bhanumati. The death penalty was of course subject to
confirmation by this Court. The State preferred an appeal insofar as the order
of acquittal was concerned but the accused Nos. 1 and 5 did not prefer any
appeal against their conviction. However, the entire case was thrown open before
this Court in the reference arising from the death sentence imposed on the two
convicts by the Designated Court which sentence was subject to confirmation by
this Court. This Court on a reassessment of the entire evidence dismissed the
State's appeal but affirmed the conviction of the aforesaid two accused and
confirmed the death sentence for reasons stated in its judgment dated 15th July,
1992 (reported in AIR 1992 SC 2100).
3. On 19th August, 1992, the petitioner filed this petition under Art. 32 of
the Constitution complaining of violation of Arts. 22, 21 and 14 of the
Constitution. The locus pleaded in paragraph 2 of the petition is as under:
"The petitioner is the President of Akali Dal (M) and is an acknowledged
political leader and, therefore, is vitally interested in upholding the rule of
law and ensuring that the same is applied equally, with fairness, equity and
good consciousness to all."
The main thrust of the petitioner's case is that once the Designated Court's
finding that no case for conviction under Sections 3 and 4 of the TADA Act was
made out was affirmed by this Court, tills Court had no jurisdiction to confirm
the death sentence as the reference for confirmation could only be disposed of
by the High Court of Maharashtra. This Court, avers the petitioner, deviated
from this course in the case of the two convicts thereby violating the rule of
law as well as Articles 22, 21 and 14 of the Constitution. Secondly, contends
the petitioner, if the case came to be decided by this Court under the TADA Act,
since the constitutional validity of that law was under challenge, it was
incumbent on this Court to await the Court's adjudication on that point before
disposing of the death reference. The petitioner has also questioned this
Court's view that the case belongs to the rarest of rare category and hence the
sentence of death was justified. Oil this line of reasoning the petitioner seeks
certain declarations, namely, (a) that the trial of the two convicts was bad in
law and violative of Arts. 14, 21 and 22 of the Constitution as the Designated
Court had no jurisdiction to proceed with the case on its holding that no
offence under Sections 3 and 4 of the TADA Act was made out (b) the reference to
the Supreme Court was bad in law and violative of Arts. 14 and 22 of the
Constitution and (c) the sentence imposed by the Designated Court and confirmed
by this Court was bad in law and violative of Arts. 21, 22 and 14 of the
Constitution.
4. Before we proceed to deal with this petition we must refer to the fact
that this very petitioner had addressed a letter dated 1st February, 1990 to the
Hon'ble Chief Justice of India requesting that he may be heard on the propriety,
validity and constitutionality of the trial as well as the sentence imposed on
the two convicts which was awaiting confirmation by this Court. Mr. R.S. Sodhi,
the present counsel for the petitioner, was appointed Amicus Curiae at State
expense to argue and assist the Court. However, at the hearing of the State's
appeal as well as the death reference, no submission was made by Mr. Sodhi on
the petitioner's application dated 1st February, 1990. If that had been done,
the need for this petition could have been obviated.
5. We now proceed to deal with the present petition. As stated earlier this
is a ,petition under Art.32 of the Constitution. That article which finds a
place in Part III of the Constitution entitled 'Fundamental Rights' provides
that the right to move the Supreme Court for the enforcement of the rights
conferred in that part is guaranteed. It empowers the Supreme Court to issue
directions or orders or writs for the enforcement of any of the fundamental
rights. The petitioner does not seek to enforce any of his fundamental rights
nor does he complain that any of his fundamental right is violated. He seeks to
enforce the fundamental rights of others, namely, the two condemned convicts who
themselves do not complain of their violation.
6. Under the Code of Criminal Procedure, Sections 303 and 304, a right is
conferred on a person accused of an offence before a Criminal Court or against
whom proceedings are instituted under the Code, to be defended by a pleader of
his choice and an obligation is cast on the Court to assign to such person a
pleader for his defence at State expense if he is not represented by a pleader
or where it appears that he has no means to engage one of his choice. Similarly,
Sections 384, 385 and 386 of the Code provide for affording an opportunity to
the appellant accused's pleader to be heard in support of his appeal. So also
Order XXI of the Supreme Court Rules makes provision for assigning an advocate
to an accused who is unrepresented. But there is no provision in the Code or the
Rules which permits an accused to be represented by a person other than a
lawyer, like the petitioner before us. There is nothing on record to suggest
that the two convicts have authorised the petitioner to move this Court on their
behalf.
7. Ordinarily, the aggrieved party which is affected by any order has the
right to seek redress by questioning the legality, validity or correctness of
the order, unless such party is a minor, an insane person or is suffering from
any other disability which the law recognises as sufficient to permit another
person, e.g. next friend, to move the Court on his behalf. If a guardian or a
next friend initiates proceedings for and on behalf of such a disabled aggrieved
party, it is in effect proceedings initiated by the party aggrieved and not by a
total stranger who has no direct personal stake in the outcome thereof. In the
present case no fundamental right of the petitioner before us is violated; if at
all the case sought to be made out is that the fundamental rights of the two
convicts have been violated. The two convicts could, if so minded, have raised
the contention in the earlier proceedings but a third party, a total stranger to
the trial commenced against the two convicts, cannot be permitted to question
the correctness of the conviction recorded against them. If that were permitted
any and every person could challenge convictions recorded day-in and dayout by
courts even if the persons convicted do not desire to do so and are inclined to
acquiesce in the decision. If the aggrieved party invokes the jurisdiction of
this Court under Article 32 of the Constitution, that may stand on a different
footing as in the case of A.R. Antulay v. R. S. Nayak, 1988(2) SCC 602 :
AIR 1988 SC 1531. However, we should not be understood to say that in
all such cases the aggrieved party has a remedy under Article 32 of the
Constitution. Unless an aggrieved party is under some disability recognised by
law, it would be unsafe and hazardous to allow any third party to question the
decision against him. Take for example a case where a person accused under
Section 302, I.P.C. is convicted for a lesser offence under Section 324, I.P.C.
The accused is quite satisfied with the decision but a third party questions it
under Article 32 and succeeds. The conviction is set aside and a fresh trial
commenced ends up in the conviction of the accused under Section 302, I.P.C. The
person to suffer for the unilateral act of the third party would be the accused.
Many such situations can be pointed out to emphasise the hazard involved if such
third party's unsolicited action is entertained. Cases which have ended in
conviction by the apex Court after a full gamut of litigation are not comparable
with preventive detention cases where a friend or next of kin is permitted to
seek a writ of Habeas Corpus. We are, therefore, satisfied that neither under
the provisions of the Code nor under any other statute is a third party stranger
permitted to question the correctness of the conviction and sentence imposed by
the Court after a regular trial. On first principles we find it difficult to
accept Mr. Sodhi's contention that such a public interest litigation commenced
by a leader of a recognised political party who has a genuine interest in the
future of the convicts should be entertained. In S.P. Gupta v. Union of
India, 1981 Suppl SCC 87 : AIR 1982 SC 149), Bhagwati, J. observed:
"But we must be careful to see that the member of the public, who
approaches the Court in cases of this kind, is acting bona fide and not for
personal gain or private profit or political motivation or other oblique
consideration. The Court must not allow its process to be abused by politicians
and others ........"
These observations were made while discussing the question of 'locus standi'
in public interest litigation. These words of caution were uttered while
expanding the scope of the 'locus standi' rule. These words should deter us from
entertaining this petition. This accords with the view expressed by this Court
in M. Krishna Swami v. Union of India, 1992(5) JT (SC) 92.
8. More apposite is the view expressed by a Division Bench of this Court in Janata
Dal v. H. S. Chowdhary, 1991(3) SCC 756. That was a public interest
litigation for quashing a F. I. R. lodged by the C. B. I. on 22nd January, 1990
based on the core allegation that certain named and unnamed persons had entered
into a criminal conspiracy in pursuance whereof they had secured illegal
gratification of crores of rupees from Bofors, a Swiss Company, through their
agents as a motive or reward. The C.B.I. had moved an application before the
learned Judge, Delhi, for the issuance of a letter rotatory to the Swiss
authorities for assistance in conducting investigation, which request was
conceded. An advocate, Shri Harinder Singh Chowdhary, filed a criminal revision
application before the High Court of Delhi for quashing the F.I.R. and the
letter rotatory on certain grounds. Several questions of law and fact were
raised in support of the challenge. The High Court came to the conclusion that
the said third party litigant had no 'locus standi' to maintain the action and
so also the interveners had no right to seek impleadment/ intervention in the
said proceeding. However, the learned Judge took suo motu cognizance of the
matter and for reasons stated in his order directed issue of show cause notice
to the C.B.I. and the State why the F.I.R. should not be quashed. On appeal this
Court came to the conclusion that the learned Judge in the High Court was right
in holding that the advocate litigant as well as the interveners had no 'locus
standi'. The relevant observations found in paragraph 26 of the judgment read as
under:
"Even if there are million questions of law to be deeply gone into and
examined in a criminal case of this nature registered against specified accused
persons, it is for them and them alone to raise all such questions and challenge
the proceedings initiated against them at the appropriate time before the proper
forum and not for third parties under the garb of public interest
litigants."
(Emphasis supplied)
In that case besides the advocate litigant certain political parties like the
Janata Dal, the C.P.I. (Marxist), the Indian Congress (Socialist) and one Dr. P.
Nalla Thampy There also approached this Court questioning the High Court's
rejection of their request for impleadment/ intervention. It was in this context
that this Court was required to examine the question whether third parties had
any 'locus standi' in criminal proceedings and answered the same as stated
above.' This decision clearly negatives the submission made by Mr. Sodhi in
support of the maintainability of this petition. We are, however, in respectful
agreement with the view expressed in the observations extracted hereinbefore.
9. For the above reasons we hold that the petitioner has no 'locus standi' to
invoke this Court's jurisdiction under Article 32 of the Constitution. We,
therefore, summarily reject this petition.
Petition rejected.