In the Hon’ble High Court of Judicature at Allahabad

Lucknow Bench, Lucknow

W.P No. ______(M/B) 2010

Dr. B.P Ashok aged about 32 years son of Sri ____________

presently posted as S.P city west Lucknow.

…….Petitioner

Versus

1. Principal Secretary, Home, U.P Govt., Civil Secretariat,

Lucknow.

2. U.P Human Rights Commission Lucknow. Through its

secretary Lucknow.

……..Opp. Parties

Writ petition Under Article 226 of The

Constitution of India

1. That the instant writ petition is being filed feeling aggrieved

against the order dated 07.07.2010 thereby the opp. Party
no 2 has passed an order in exercise of power under
section 18(1) of the Protection of Human Rights Act, 1993
thereby directing the principal Secretary Home to get an
enquiry to be conducted in the matter by C.B C.I.D. True
copy of order dated 07.07.2010 is being annexed herewith
as Annexure no.1

2. That the validity of order dated 07.07.2010 is being

challenged, interalia, on the ground that the section 18(1)
Protection of Human Right Act, 1993 does not empower
the learned commission to issue direction to the state
government for invoking the power of further
investigation even in respect of those cases in which the
matter is pending with the court of competent jurisdiction
for trial and the cognizance of the offences has already
been taken by the learned Magistrate as well as by the
special Judge (Gangster) Lucknow in respect of which the
gang chart against various accused persons has already
been approved by the district Magistrate and S.S.P
Lucknow in accordance with law.

3. That the provision of section 18(1) of the Protection of

Human Rights Act, 1993, contemplates that the
recommendation is made by commission to the
government for initiation or launching of prosecution or
 other action, as a result of conclusion of enquiry by the
commission itself and power to conduct enquiry has been
contemplated under section 13 of the aforesaid Act which
deals with the entire regulatory procedure including all
the powers of civil court can very well be invoked by the
commission while conducting the enquiry. Moreover the
power of investigation for the purposes of conducting the
enquiry may also be invoked by the commission itself
under section 14 of the aforesaid Act. It is further pointed
out that in conducting the enquiry the commission may
even record the statement of any person with the aid of
section 15 of the aforesaid Act and thus it is evident that
the aforesaid Act contemplates the roving enquiry at the
end of the commission itself which resultantly empowers
to pass an order for recommendation to the state
government not for direction under section 18(1) of the
Act for giving effect for launching prosecution or other
action permissible under law.

4. That the bare perusal of section 18 of the aforesaid Act deals

with the word “upon completion of an enquiry held under
this Act” and as such the power under section 18(1) is
exercisable only after completion of enquiry under the
aforesaid Act at the end of commission itself.

5. That it is not out of place to mention here that the provision

of section 16 of the aforesaid Act also contemplates that
the persons likely to be prejudicially affected may be
heard at the stage of enquiry by the commission and thus
the order for enquiry by C.B-C.I.D is unwarranted as
mentioned in the impugned order dated 07.07.2010
passed by learned commission.

6. That it is also pointed out that the petitioner had submitted a

detailed representation to the commission on ______
raising the grievance in respect of the passing of an order
on 07.07.2010 and the representation so submitted is still
pending consideration and has yet not been decided to
the best of the knowledge of the deponent.

7. That the impugned order dated 07.07.2010 has been passed

in violation of the principle of natural Justice as
contemplated under section 16 of Protection of Human
Right Act, 1993.

8. That the provisions of section 16 are meant for affording

opportunity of hearing to those persons likely to be
prejudicially affected by the enquiry in respect of the
conduct of any person to enable him to produce evidence
 in his defense but no such show cause notice at the end of
the commission has ever been issued briefly narrating the
proposed misconduct/negligence in discharge of official
duty so as to enable him to lead defense evidence for the
purposes of rebutting the allegations leveled by the
complainant for which the matter has been represented
by the petitioner side to the commission by way of
detailed representation but in vain.

9. That from the tenor of the order dated 07.07.2010 passed by

the learned commission it is evident that the enquiry by
C.B-C.I.D has been ordered in respect of alleged violation
of Human Right in respect of various transaction which are
alleged to have been done prior to one year ago from the
date on which the act constituting the violation of Human
Rights is alleged to have been committed.

10. That undisputedly that section 36(2) of the aforesaid Act

thus places an embargo against the commission enquiring
into any matter after expiry of one year from the date of
alleged Act violative of Human Rights, resultantly creating
jurisdictional bar upon the power of commission. It is also
pointed out that the period of limitation though basically
procedural in nature, can also operate as fetters upon the
jurisdiction of the commission under certain situations.
From the bare perusal of the marginal heading “matters
not subject to jurisdiction of commission” itself
reveals that the language employed in the marginal
heading is an another indicator that it is the jurisdictional
limitation upon the power of commission. It is settled rule
of interpretation that the section heading or marginal note
can be relied upon to clear any doubt or ambiguity.

11. That it is needless to point out here that the commission has
no unlimited jurisdiction nor does it exercise plenary
powers in derogation of statutory limitation, keeping in
view this aspect of matter that the commission is the
creature of the statute under which it is bound by its
provision. Its duties and functions are defined at
circumscribed by the Act under which this statutory body
has been created.