Mahendra Jagdish Agarwal Vs the State of Maharashtra and Anr.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL WRIT PETITION NO.1202 OF 2007

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 Shri.Mahendra Jagdish Agarwal. ..Petitioner.

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 Versus

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 The State of Maharashtra
 and Anr. ..Respondents.

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 ..
 Mr.Bhavesh Parmar, Adv. for the Petitioner.
 Mr.V.B.Konde-Deshmukh, APP, for the State.

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CORAM : R.M.S.KHANDEPARKAR AND
 SMT.V.K.TAHILRAMANI,JJ.

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 DATED : SEPTEMBER 13, 2007.

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P.C.:-

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 1. Heard.

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 2. The petitioner challenges the order dated

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 20th March, 2007 passed by the Maharashtra State
 Human Rights Commission in Case No.1267/2006-07.
 The complainant-petitioner has been informed by
 the said order that, the matter relates to civil
 dispute, such as property rights and contractual
 obligations and, therefore, the proceedings
 before the Commission have been closed.

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 3. Upon hearing the learned Advocate
 appearing for the petitioner and on perusing the
 record, it is seen that the complaint filed by
 the petitioner before the Maharashtra State
 Human Rights Commission on 20th February, 2007
 essentially related to grievance of the
 petitioner that he was improperly and illegally
 booked by the police authorities under the
 provisions of Maharashtra Control of Organised
 Crimes Act and further in relation to certain
 civil disputes regarding the properties.
 Infact, the violation of human rights alleged in
 the complaint have been summarised by the
 petitioner in the said complaint as under :-

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 "(a) Whether it was correct on the part
 of the police to mechanically
 arrest our client on 5.7.2006 in
 C.R. No.53 of 2006 under the

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 stringent provisions of MCOCA when
 the first informant’s information
 on facts against our client was
 absolutely untrue and baseless i.e.
 in the 2nd week of June, 2006 when

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 the first informant was threatened
 in the office of M/s. Vertex
 Warehousing and Construction Pvt.
 Ltd. wherein our client is a
 Director, our client was not
 present in India from the period
 28.5.2006 till 29.6.2006.

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 (b) Whether it was correct on the part
 of the police to keep our client in
 police and judicial custody for a
 period approximately 65 days i.e.
 from the date of the arrest
 (5.7.2006) till the date of his
 release on bail on (7.9.2006), when
 there was prima facie material
 available before the police which
 clearly suggested that the first
 informant in C.R. No.53 of 2006
 was trying to use the police
 machinery to coerce our client into
 giving up the development of the
 said property in favour of the
 first informant.

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 (c) Whether it was correct on the part
 of the police to ignore the fact
 that M/s. Vertex Warehousing and
 Construction Pvt. Ltd. wherein
 our client is a Director had taken
 various steps for protection of its
 property which the first informant
 and local politicians were trying
 to grab. Why were the letters and
 orders obtained by M/s. Vertex
 Warehousing and Construction

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 Pvt.Ltd. wherein our client is a
 Director ignored which clearly
 showed that the first informant in
 C.R. No.53 of 2006 was himself

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 carrying out threats of mischief on
 the said property owned by M/s.
 Vertex Warehousing and Construction
 Pvt. Ltd. wherein our client is a
 Director.

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 (d) Whether it was correct on the part
 of the police to ignore the fact

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 that pending the arrest of our
 client from 5.7.2006 till 7.9.2006
 alongwith other directors of M/s.
 Vertex Warehousing and Construction
 Pvt. Ltd. wherein our client is a
 Director, the first information of
 C.R. No.53 of 2006 taking wrongful
 advantage of the factual position
 had made an application to the SRA
 authorities on 21.7.2006 seeking
 acquisition of the said property in
 its favour for redevelopment of the
 said property which belongs to M/s.
 Vertex Warehousing and Construction
 Pvt. Ltd. wherein our client is a
 Director.

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 (e) Whether it was correct on the part
 of the police officers named in the
 present complaint who time and
 again suggested to our client to
 withdraw from the development of
 the said property in favour of the
 first informant, local politicians

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 and M/s. Santosh Enterprises
 (Builders / Developers) to avoid
 being prosecuted under the
 stringent law of MCOCA."

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 . It was further stated in the complaint as
 under :-

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 . In view of the aforesaid facts and
 circumstances narrated hereinabove
 it is abundantly clear that the
 first informant in C.R. No.53 of
 2006 Mr.Brijlal Tiwari with
 malafide intentions and in
 conspiracy and collusion with local
 politicians who are part of the
 present State Government and M/s.
 Santosh Enterprises (Builders /
 Developers) have misused the police
 machinery for personal gains at the
 cost and consequences of our

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 client."

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 4. The above averments in the complaint

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 apparently disclose that though there was a
 grievance made against the police authorities
 for having booked the petitioner under the
 provisions of the Maharashtra Control of
 Organised Crimes Act, the complaint essentially
 relates to civil dispute of the petitioner with
 other persons named in the complaint, and that
 having been noted by the Commission, it has
 closed the proceedings.

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 5. It was sought to be contended on behalf of
 the petitioner that the only provision under
 which the complaint could have been rejected was
 under Section 36 of the Protection of Human
 Rights Act, 1993 and there is no other provision
 which would empower the Commission to reject the
 said complaint. Section 36(1) of the Protection
 of Human Rights Act, 1993 (hereinafter referred
 to as the said Act, for brevity) provides that,
 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. Sub-section
 (2) thereof provides that, the Commission or the

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 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.
 Apparently, Section 36 relates the bar provided
 for inquiry into the matter by the Commission.
 It does not deal with the power of the
 Commission to reject the complaint. Section 10
 of the said Act provides that, the Commission
 shall meet at such time and place as the
 Chairperson may think fit, and the Commission
 shall regulate its own procedure. Being so, as
 far as the procedure to be followed by the
 Commission is concerned, undoubtedly, there are
 regulations to be framed by the Commission for
 disposal of the complaints. It is the
 contention on behalf of the petitioner that no
 such regulations have been duly published and
 notified in accordance with the provisions of
 law and, therefore, merely by referring to
 Regulation 8(d) of the Maharashtra State Human
 Rights Commission, (Procedure) Regulations,
 2001, the Commission could not have rejected the
 complaint.

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 6. Even assuming that the Commission has
 wrongly referred to the provisions of regulation
 which are yet to be notified, that itself cannot
 not preclude the Commission from dealing with
 the complaint filed before the Commission. So
 also, that itself cannot preclude the Commission
 from disposing of the matters, particularly, in
 view of the provisions comprised under Section
 10 of the said Act. Besides, mere reference to
 wrong provisions of law that itself cannot
 vitiate any order passed by such an authority.
 Once the complaint is filed before the
 Commission, the Commission has to bear in mind
 the provisions of Section 12 of the said Act
 while dealing with such complaint.

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 7. Section 12(a) of the said Act, clearly
 empowers the Commission to inquire, suo motu or
 on a petition presented to it by a victim or any
 person on his behalf, into complaint of - (i)
 violation of human rights or abetment thereof;
 or (ii) negligence in the prevention of such
 violation, by a public servant. If on the basis

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 of the facts disclosed in the complaint, the
 Commission is able to arrive at a conclusion
 that the complaint is merely relating to a civil
 dispute and it does not disclose violation of
 any human rights, nothing would prevent the
 Commission from rejecting such complaint.
 Drawing our attention to Section 12(b) of the
 said Act, it was sought to be contended on
 behalf of the petitioner that the Commission can
 even intervene in any proceeding involving any
 allegation of violation of human rights pending
 before a court. It is sought to be contended
 that the petitioner has alleged violation of
 human rights on account of the petitioner being
 booked under the Maharashtra Control of
 Organised Crimes Act by the police authorities.
 Merely because the petitioner has been booked
 under the Maharashtra Control of Organised
 Crimes Act that itself cannot lead to conclusion
 that there is violation of human rights.
 Undisputedly, the charge-sheet has been filed
 and the concerned Court is seized with the
 matter. It will for the competent Court to
 decide whether the petitioner has been illegally

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 booked under the Maharashtra Control of

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 Organised Crimes Act or not and consider the
 same. It will be too premature for the Human
 Rights Commission to intervene in the matter.
 Besides, Section 12(b) of the said Act does not
 empower the Commission to intervene the Court
 before which the proceedings are initiated. The
 said provision merely provides that the
 Commission shall intervene in any proceeding
 involving any allegation of violation of human
 rights pending before a court with the approval
 of such court.

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 8. It was sought to be argued on behalf of
 the petitioner referring to Section 40(B) of the
 Protection of Human Rights (Amendment) Act, 2006
 (No.43 of 2006), that the regulations framed by
 the Commission as regards the procedure to be
 followed for disposal of the complaint should be
 notified and in the absence of notification the
 regulation would be bad. Section 40(B)(1)
 provides that, subject to the provisions of this
 Act and the rules made thereunder, the
 Commission may, with the previous approval of

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 the Central Government, by notification, make
 regulations to carry out the provisions of this
 Act. Sub-section (2) thereof provides that, in
 particular and without prejudice to the
 generality of the foregoing power, such
 regulations may provide for all or any of the
 following matters, namely:- (a) the procedure to
 be followed by the Commission under sub-section

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 (2) of section 10; (b) the returns and
 statistics to be furnished by the State
 Commissions; and (c) any other matter which has
 to be, or may be, specified by regulations.
 Sub-section (3) thereof provides that, every
 regulation made by the Commission under this Act
 shall be laid, as soon as may be after it is
 made, before each House of Parliament, while it
 is in session, for a total period of thirty days
 which may be comprised in one session or in two
 or more successive sessions, and if, before the
 expiry of the session or the successive sessions
 aforesaid, both Houses agree in making any
 modification in the regulation or both Houses
 agree that the regulation should not be made,
 the regulation shall thereafter have effect only

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 in such modified form or be of no effect, as the
 case may be; so, however, that any such
 modification or annulment shall be without
 prejudice to the validity of anything previously
 done under that regulation." Undoubtedly Section
 40B was introduced in the said Act by the
 Protection of Human Rights (Amendment) Act, 2006
 (No.43 of 2006) under Section 18 thereof.
 Apparently, the provisions incorporated under
 Section 40(B) requires regulations to be framed
 and to have the same notified. However, it is
 to be noted that this provision of law
 incorporated under Section 40(B) nowhere
 nullifies or affects the Regulations already
 framed by the Commission and in force prior to
 coming into force Section 40(B) of new Act. The
 impugned order clearly refers to the Regulations
 framed in the year 2001. The amendment has been
 incorporated in the year 2006. Exfacie,
 therefore, it cannot be said that the

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 Regulations of 2001 even assuming that they were
 not notified in terms of Section 40(B) of the
 Amended Act, to be totally bad-in-law and/or
 cannot be relied upon. Therefore, the

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 contention in this regard which is sought to be

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 raised, is rejected.

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 9. For the reasons stated above, therefore,
 no case is made out for interference in the
 matter in writ jurisdiction. Petition therefore
 fails and is rejected accordingly.

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 [R.M.S.KHANDEPARKAR,J.]

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 [SMT.V.K.TAHILRAMANI,J.]

Mahendra Jagdish Agarwal v. the State of Maharashtra and Anr.

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Mahendra Jagdish Agarwal v. the State of Maharashtra and Anr.

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