Gujarat High Court
Suo Motu vs Secretary To The Government on 22 March, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
SUO MOTU....Applicant(s)V/SSECRETARY TO THE GOVERNMENT OF GUJARAT C/WPPIL/170/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 170 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ SUO MOTU....Applicant(s) Versus SECRETARY TO THE GOVERNMENT OF GUJARAT & 1....Opponent(s) ================================================================ Appearance:
MR.
SHALIN MEHTA, SR. COUNSEL as Amicus-curiae - for the Applicant(s) No. 1 MR HEMANG M SHAH, ADVOCATE for the Applicant(s) No. 1 SUO MOTU for the Applicant(s) No. 1 MR.P.K. JANI, GOVERNMENT PLEADER with Mrs. Krina Calla, AGP for the Opponent(s) No. 1 - 2 NOTICE SERVED for the Opponent(s) No. 2 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :22/03/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) Almost thirty years down the memory lane, the Supreme Court in a decision known as 'Premchand Vs. Union of India and ors.' reported in [1981] SC 613 had posed a question who will police the Police ? We have no doubt in our mind that this question, even with the best of the efforts put in by one and all, more particularly the judiciary of this country, still remains unanswered.
2. The genesis of this litigation lies in an application dated nil (along with original photographs and Compact Disc) addressed by one Dr. Jayanti M. Mankadia and others to the Chief Justice, stating that on 25th June 2012, many innocent Dalits became victim of Police atrocity at Ambedkarnagar Colony in the Thorala Ward of Rajkot City. It has been stated that the said incident is connected with a series of other incidents which occurred after the murder of a Dalit leader named Gunvant Rathore by few non-Dalit persons in the area on 24th June 2012. The funeral of the late Gunvant Rathore was organised on 25th June 2012. As a mark of respect to the departed leader, around 250 Dalits had participated in the burial ceremony. After the burial ceremony was over, some of the members of the Dalit community took out a procession demanding the arrest of all the accused involved in the murder of their leader. As a mark of protest, they gathered on the main road close to their residential colony named Ambedkarnagar. The Police party posted at that particular place unleashed a brutal and indiscriminate lathi-charge on the people who had gathered demanding arrest of the accused persons involved in the murder of their leader. The Police also pelted stones and fired teargas shells to disperse the mob of Dalits. The lathi-charge was completely unprovoked, unwarranted and the violence that followed the lathi-charge was even more brutal. It has also been stated in the letter addressed to the Chief Justice that as the tension started mounting, many of the Dalit inhabitants of Ambedkarnagar closed their houses and kept themselves confined inside their respective houses. The Police barged into the residential areas, forcefully broke into the houses shouting the worst possible caste abuses against Dalits and assaulted one and all who were found in the houses, as a result of which small children, women and young girls sustained simple injuries to severe injuries.
3. It is also alleged that following the lathi-charge and the brutal assault by the Police on the Dalits inside their houses, the Police indiscriminately detained several persons who were not even present in the procession. It is further alleged that a young mother with a three year old child was also arrested and charged under various Sections of the Indian Penal Code and was still languishing in the jail.
4. In the letter, the details have been furnished as regards the name and address of the victims who were injured due to indiscriminate lathi-charge and assault by the Police. The details are as under:-
1. Karanji Valjibhai Solanki, aged 9 years, residing at 3, Ambedkarnagar 80 feet Road, Aji Vashat, Rajkot-3;
It is stated in the letter that Karanji was playing in his house after returning from morning school. The Police broke open the door of his house and started assaulting him with the lathis. One of the Policemen kicked the boy on his private part and injured his testicles.
2. Mukesh Valjibhai Solanki, aged 14 years, residing at 3, Ambedkarnagar 80 feet Road, Aji Vashat, Rajkot-3;
Mukesh was resting in his house at the time of the incident and had just returned from the school. He was unaware of what was going on in the surrounding. The Police broke open the door of his house, caught hold of him and started assaulting him with the lathis, which led to the fracture of his leg.
3. Naresh Saresha, aged 11 years, residing at 3, Ambedkarnagar 80 feet Road, Aji Vashat, Rajkot-3;
Naresh was resting in his house at the time of the incident as he had returned from the morning school. The Police broke open the door of his house, caught hold of him and was assaulted with the lathies, leading to fracture in his leg.
4. Prafulbhai Manjibhai Danger, aged 16 years, residing at 3, Ambedkarnagar 80 feet Road, Aji Vashat, Rajkot-3;
Prafulbhai was also resting in his house when Police broke open the door of his house and started assaulting, which resulted in the fracture of his leg.
5. Kantaben Mohanbhai Chavda, aged 38 years, residing at 3, Ambedkarnagar 80 feet Road, Aji Vashat, Rajkot-3;
Kantaben was one of the members of the procession. Kantaben had joined the others at the time of the burial ceremony of the late leader. Kantaben was having her bath with other women at the public bath rooms built near the burial ground for the ritual of 'Uttarkriya' (bathing after burial). At that point of time, the Police led an assault with lathies continuously despite the fact that she was silently walking away from the Police.
6. Rupaben Savjibhai Sonderva, aged 16 years, residing at 3, Ambedkarnagar 80 feet Road, Aji Vashat, Rajkot-3;
Rupaben was busy with her household work and was completely unaware as to what was going on outside her house. The Police broke open the door of the house of the neighbour of Rupaben, climbed the staircase up to the terrace and found that Rupaben was busy cooking food on the terrace of her house. The Police called for Rupaben, as a result of which Rupaben got scared and started shouting. Rupaben tried to make good her escape, but the Policemen chased her, kicked her and the impact of the kick was such that Rupaben fell down from the staircase of her house leading to serious spinal injury and injury to her leg. It has been stated in the letter that as a result of the spinal injury, Rupaben is completely confined to bed and there is every possibility that she may permanently remain disabled.
5. It has been further stated that after the incident, Rupaben was immediately taken to the Rajkot Civil Hospital for treatment, where she was given some preliminary treatment as an out-door patient and was sent back to home. Rupaben, thereafter got completely bed ridden. On 1st July 2012, when a fact finding delegation visited her house and found that she needed urgent hospitalisation, they immediately arranged to shift Rupaben to Ahmedabad Civil Hospital. Rupaben was admitted at the Ahmedabad Civil Hospital in the night of 1st July 2012. The doctors having found that her condition was critical, immediately admitted Rupaben as an indoor patient and at least on the date of the letter, Rupaben was undergoing treatment in the Department of Paraplegics. It has been stated in the letter that the girl could personally identify the Police officials who assaulted her. The names of the two Police Officers responsible, according to the letter, are one Mr.Rabari, A.C.P and Mr.Sarvaiyya, a Police Inspector.
6. It has also been stated in the letter that the Ahmedabad Civil Hospital registered the case of Rupaben as a medico legal case and informed the Rajkot Police about the same. Even after almost one week of hospitalization, no Police Officer from the Rajkot Police Station turned up to record even a formal statement of Rupaben.
7. It has been stated in the letter that the parents of the victims and community members humbly request the Chief Justice to take a serious view of the matter and order an enquiry into the alleged brutal Police atrocity. It has also been stated that the Police being public servants and custodian of the law and order were duty bound to protect the Dalits, but instead misused their powers and violated the fundamental rights of the Dalits. It has also been stated that the photographic evidence and also the video clippings would suggest the highhanded manner in which the Police assaulted the Dalits.
8. Timely intervention was prayed for by issuing directions to the State of Gujarat to ensure that prosecution under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 be registered against the erring Police officials. It has also been prayed that the National Human Rights Commission be also requested to look into the matter.
9. On receipt of the letter by the Secretariat of the Chief Justice, the necessary submission was placed before the the Chief Justice and the Chief Justice passed orders to treat the letter as a suo-motu writ-petition. Thus, the High Court decided to take suo-motu cognizance of the atrocity complained of by the members of the Dalit community.
10. On 9th August 2012, this Court issued notice and directed the State-respondent to file an affidavit within a fortnight. This Court also appointed Mr.Shalin Mehta, the learned Senior Advocate as amicus-curiae to assist the Court.
11. Submissions on behalf of the A micus-Curiae :
Mr. Shalin Mehta, the learned Senior Counsel appearing as amicus-curiae submitted that the original photographs accompanying the application of Dr. Jayanti M. Mankadia would suggest that the masked Policemen led an indiscriminate and brutal lathi-charge on the mob, which included women and children. According to Mr. Mehta, the Compact Disc also reveals how the masked Policemen entered the public toilet to lathi-charge those persons who had tried to escape from the clutches of the Police by hiding themselves in the public toilet.
Mr. Mehta submitted that as many as eight FIRs have been lodged in connection with the said incident. Mr. Mehta in his report tendered to this Court has given the following details:-
(a) FIR 99 of 2012 was lodged by Jyotiben Lalitbhai Solanki on 20th June 2012 at 7.30 p.m. against 8 accused alleging commission of offence punishable under Sections 452, 147, 148, 149, 323, 324, 427 and 506 of the Indian Penal Code, Section 135(2) of the Bombay Police Act and Section 3(1)(10) of the Atrocity Act. The incident figuring in this FIR was an act on a Dalit's house. No arrest was made by the Police till the accused were released on bail.
(b) FIR 102 of 2012 (Cross FIR) was lodged by Shantaben Vallabhbhai Thummar against 10 accused alleging commission of offence punishable under Sections 143, 147, 148, 149 and 452 of the Indian Penal Code on 21st June 2012, one of the accused being Gunvant Rathore, a Dalit leader.
Gunvant Rathore was arrested by the Police and released on 24th June 2012. On the same day, he was murdered at 8.00 p.m.
(c) FIR 103 of 2012 was lodged by Sattarbhai Rasulbhai Khaliyani on 24th June 2012 against 70 to 80 unknown persons alleging commission of offence punishable under Sections 143, 147, 336 and 427 of the Indian Penal Code.
(d) FIR 104 of 2012 was lodged by Arvindbhai M. Rathore on 25th June 2012 against 9 accused (5 accused of FIR 99 of 2012) for the murder of Gunvant Rathore alleging commission of offence punishable under Sections 143, 316, 147, 148, 149, 302 and 506 of the Indian Penal Code etc. Accused No.8 named Imran, was arrested. No other arrests were made by the Police.
(e) FIR 105 of 2012 was lodged by Rehmatben Jusubbhai Raoma (Imran's aunt) on 25th June 2012 at 2.15 P.M against 5 named accused and 50 unnamed persons alleging commission of offence punishable under Sections 143, 147, 148, 149 and 436 of the Indian Penal Code. Pursuant to the said FIR, 5 women who were unnamed in the FIR were arrested. Those women were released on bail only on 3rd July 2012. The Magistrate passed an order to keep them in judicial custody upto 9th July 2012.
(f) FIR 106 of 2012 was lodged by Jusubbhai Hamirbhai Sumra (Imran's father) on 25th June 2012 against 8 named accused and 100 unnamed persons alleging commission of offence punishable under Sections 143, 147, 148, 149, 436, 427, 337, 452 and 350 of the Indian Penal Code and Section 135(1) of the Bombay Police Act.
(g) FIR 107 of 2012 was lodged by Jagdish Sunderdas Sidi on 25th June 2012 against more than 100 unnamed persons alleging commission of offence punishable under Sections 143, 147, 337 and 427 of the Indian Penal Code.
(h) FIR 108 of 2012 was lodged by J.B.Rana, Police Inspector, Thorana Police Station on 25th June 2012 against 55 named accused alleging commission of offence punishable under Sections 143, 147, 148, 149, 337, 332, 341 and 427 of the Indian Penal Code.
According to Mr. Mehta, barring the accused No.8, Imran, the accused of FIR No. 104 of 2012 (for the murder of Gunvant Rathore) were not arrested by the Police. Even the accused of FIR No. 99/12 were not arrested by the Police. Ultimately, the accused of FIR No.99/12 were released on bail. However, five unnamed accused of FIR No. 105/12 (all women) were arrested by the Police on 25th June 2012. They were released on bail on 3rd July 2012 after almost eight days from the date of the arrest.
According to Mr. Mehta, there was no reason for the Police officials to act in such a highhanded manner. The Police should have exercised restraint. Mr. Mehta submitted that the mob of Dalits had formed an unlawful assembly to protest against the murder of their Dalit leader Gunvant Rathore. After watching the compact disc, Mr. Mehta submitted that even the Police personnel were found pelting stones on the protesters. Even the children and women were not spared. The original photographs and the compact disc do not suggest that the Police personnel resorted to mild lathi-charge as the unlawful assembly had become very violent.
12. Stance of the State-respondent:
Mr. P.K. Jani, the learned Government Pleader appearing for the State-respondent vehemently submitted that the allegations levelled against the Police officials are baseless and not well founded. According to Mr. Jani, on the night of 24th June 2012, a mob of people formed an unlawful assembly and went on a rampage by damaging and torching the properties. As many as four FIRs were registered with respect to such incidents of rioting and arson.
During the cremation ceremony of the Dalit leader, a Police bandobast had to be deployed as around 500 to 700 people had gathered to pay their respect to the deceased. After the cremation ceremony was over at around 9 A.M in the morning, the persons who had come to attend the cremation ceremony assembled on an 80 feet road in front of Ambedkarnagar, Rajkot City and completely blocked the road thereby disturbing the traffic and kept on demanding for immediate arrest of the accused responsible for the murder of their leader. Mr. Jani submitted that the Police authorities deployed at the spot tried their best to explain and assure the mob that necessary steps would surely be taken and the persons responsible for the murder of their Dalit leader would not be spared in any circumstances.
Despite persuading the mob for more than two hours, the people who had gathered refused to clear the road and started blocking the road with dustbins of Municipality and when the Police tried to remove the dustbins, the mob started pelting stones on the Officers.
According to Mr. Jani, during the pelting of the stones, as many as three Police officials were injured and two Government vehicles were damaged. Mr. Jani tried to substantiate this by relying on the panchnamas which were drawn during the course of the investigation.
According to Mr. Jani, repeated warnings were given on a loudspeaker to stop pelting of stones and damaging Government vehicles, but the unlawful assembly was in no mood to pay any heed to the orders of the Police authorities, as a result, the Police authorities had to fire twelve teargas shells. Even after fireing teargas shells, the mob continued pelting of stones and therefore, as a last resort, Police was compelled to use mild lathi-charge to control the situation which was getting from bad to the worst. Mr. Jani also submitted that as many as 54 persons from the unlawful assembly were arrested with weapons in their hands. According to Mr. Jani, none of the six injured victims had sustained any injuries on account of the lathi-charge at the end of the Police.
In the first affidavit-in-reply filed by one Shri Vishalkumar Vaghela, the Assistant Commissioner of Police, Rajkot City, Rajkot, the details as regards the six victims and the injuries have been explained and the details are as under:-
1. Karanji Valjibhai Solanki:
According to Mr. Jani, this boy was admitted in the Civil Hospital at Rajkot on 2nd July 2012 on the complaint that he had suffered injuries on his private part of the body due to assault by the Police on 25th June 2012. This boy is studying in Standard IVth in Khodiyarpara School No.76. The school timing of this boy is 12 noon to 5 P.M and the enquiry revealed that the boy had not attended the school on the date of the incident i.e. 25th June 2012. According to the State-respondent, there is no substance in the allegations that this boy was playing in his house after returning from the morning school and at that point of time the Policemen entered into his house and led an assault on him with a lathi, resulting in swelling on his private part. According to the State-respondent, from the letter of the school and the attendance sheet, it has been verified that this boy had not attended the school on 25th June 2012 i.e. on the date of the incident.
2. Mukesh Valjibhai Solanki:
This boy was admitted in the Civil Hospital, Rajkot on 2nd July 2012 with a complaint and case history that he had suffered fracture on his leg due to assault by the Policemen. This boy is studying in Standard Xth in Balkishore Vidyalaya. The school timing is 12:15 p.m. to 5.30 p.m. According to the State-respondent, there is no substance in the allegations that this boy was assaulted by the Policemen while he was resting in his house. According to the State-respondent, the enquiry revealed that this boy had attended the school from 24th June 2012 regularly till 2nd July 2012 i.e. the date on which he was taken to the hospital.
3. Naresh Saileshbhai Saresha:
This boy was admitted in the Civil Hospital at Rajkot on 2nd July 2012 with a complaint and history of sustaining fracture in his leg on account of the assault by the Policemen. This boy is studying in Standard Vth in Madhavrao School. According to the State-respondent, there is no substance in the allegations that he was assaulted by the Policemen while he was resting in his house. The enquiry revealed that the school was closed on 25th and 26th June 2012.
4. Prafulbhai Manjibhai Danger:
This boy is aged around 16 years and working as a part-time labourer in an iron factory. According to the State-respondent, there is no substance in the allegations that he was assaulted by the Policemen with lathi while he was resting in his house, resulting in fracture of his leg. This boy was admitted in the Civil Hospital, Rajkot on 2nd July 2012. The medical certificate issued by the doctor reveals that there was tenderness on the right ankle.
5. Kantaben Mohanbhai Chavda:
According to the State-respondent, this lady was arrested from the place of the incident. There is no substance in the allegations that she was taking bath with other women at the bath-rooms built near the burial ground and the Police at that point of time led an assault on her with lathis continuously hitting her as she tried to walk away from the Police.
6. Rupaben Savjibhai Sonderva:
This girl is aged around 16 years. According to the State-respondent, there is no merit or substance in the allegation that she was busy with her household work and was completely unaware as to what was going on outside her house. There is no substance in the allegation that the Police broke open the door of the house of the neighbour of Rupaben, climbed the stairs up to the terrace and chased her down by inflicting kicks as a result of which she fell down from the stairs leading to serious spinal and leg injuries.
Mr. Jani vehemently submitted that all the victims were taken to the Civil Hospital on the same day i.e. on 2nd July 2012 and two of them were discharged on the same day i.e. on 2nd July 2012 against the medical advice. According to Mr. Jani, the allegations that people were brutally assaulted by the Policemen is nothing but an afterthought, as 54 persons were arrested on the spot of the incident. Mr. Jani submitted that no credence should be given to the photographs as well as the compact disc as they project only a part of the whole incident, whereas there is evidence on record to show that the mob had formed an unlawful assembly and had blocked the entire Highway. According to Mr. Jani, there is evidence to show that they started pelting stones on the Policemen and created an atmosphere of terror, as a result of which the Police authorities were left with no other option but to order mild lathi-charge on the mob.
Mr. Jani submitted that the present writ-petition under Article 226 of the Constitution of India is not maintainable. The author of the letter, on the basis of which suo-motu cognizance has been taken by this High Court, has an efficacious remedy of filing a criminal complaint against the alleged wrongdoers.
Mr. Jani also submitted that under the provisions of the Bombay Police Act, 1951, the Police authorities have been vested with certain duties and powers. The Act also provides immunity to the officers from any action on the complaint of Police accesses, if the action is taken in good faith for the purpose of maintenance of law and order. Mr. Jani also relied on the provisions of the Criminal Procedure Code as well as the Indian Penal Code.
Mr. Jani further submitted that the Act of the Police authorities in discharging their duties, as in the instant case, may not be put under strict scrutiny by way of a public interest litigation under Article 226 of the Constitution, more particularly when it is impossible to establish any oblique motive on the part of the Police in resorting to mild lathi-charge. Any adjudication at the end of this Court at this stage to fix the liability of the Police authorities will amount to prejudging the whole issue even before the competent trial Court could look into the matter.
Mr. Jani therefore, prays that the notice issued be discharged and the aggrieved persons be relegated to the remedy of filing criminal complaint before the competent forum in accordance with law.
13. Having heard the learned counsel for the respective parties and having gone through the materials on record, it is luminescent that the centripodal question that emerges for our consideration is whether the Police acted in a highhanded and barbaric manner in resorting to lathi-charge resulting into injuries to number of innocent persons without any justifiable reasons or not.
14. Analysis:
The picture that emerges on cumulative reading of the materials on record would suggest that a leader of the Dalit community named Gunvant Rathore was stabbed to death by few individuals of other community and the members of the Dalit community felt that the investigation was deliberately not being carried out properly and therefore, on the next day after the body of the slained leader was cremated, the members of the community assembled in large numbers to protest against the inaction on the part of the Police in arresting the assailants. It also appears that the members of the Dalit community gathered in front of the Ambedkarnagar and blocked the main Bhavnagar road, as a result of which the smooth flow of the traffic got obstructed. It is the case of the State-respondent that the members of the Dalit community were persuaded to disperse and clear the road. The members of the Dalit community were also assured that the culprits responsible for the murder of their leader would be arrested and proceeded with in accordance with law. It appears that at that stage the mob refused to accede to the request made by the Police, as a result of which the obstruction on the Bhavnagar road continued.
What the Police is expected to do in such a situation, and how the Police is expected to act so as to see that the mob is dispersed peacefully? The Police felt that the only way and method to disperse the mob would be by resorting to lathi-charge and firing of teargas shells.
15. At this stage, before looking into the matter further, it will be profitable to look into few legal provisions as regards the Police Regulations as provided in the Bombay Police Act, 1951. Chapter IV of the Act, 1951 deals with the Police Regulations. Section 33 provides for power to make Rules or Regulations of Traffic and for preservation of order in public place etc. Section 33, Clause (1) sub-clauses (b), (n) and (o) are relevant for our purpose and they are quoted below:-
Sec.33:-
Power to make rules or regulation of traffic and for preservation of order in public place, etc. -(1) [The Commissioner, with respect to all or any of the following matters specified in this sub-section and the District Magistrate, with respect to all or any of the said matters except the matters referred to in sub-section (1AA), may make, alter or rescind rules or orders not inconsistent with this Act, in areas under their respective charges or any part thereof, namely :-]
(b) Regulating traffic of all kinds in streets, and public places, and the use of streets and public places, and the use of streets and public places by persons riding, driving, cycling walking or leading or accompanying cattle, so as to prevent danger, obstruction or inconvenience to the public;
(n) Licensing controlling or, in order to prevent the obstruction, inconvenience, annoyance, risk, danger or damage of the resident or passengers in the vicinity prohibiting the playing of music, the beating of drums, tom-tom or the instruments and the blowing or sounding of hours or other noisy instruments in or near streets or public places;
(o) Regulating the conduct of and behavior or action of persons constituting assemblies and processions on or along the streets and prescribing in the case of processions, the routes by which the, order in which and the times at which the same may pass;
16. Section 36 provides for the power of the Commissioner of the District Superintendent and of other Officers to give direction to the public. Section 36 reads as under:-
Sec.36:-
Power of Commissioner or the District Superintendent and of other officers to given direction to the public.- In areas under their respective charges the Commissioner, and subject to his orders every Police officer not inferior in rank to an Inspector, and the District Superintendent and subject to his orders any Police Officer of not lower than such rank as may be specified by the State Government in that behalf, may, from time to time as occasion may arise, but not so as to contravene any rule or order under section 33 give all such orders either orally or in writing as may be necessary to--
(a)direct the conduct of, and behavior or action of persons constituting processions or assemblies on or along the streets;
17. Section 39 provides for the issuance of orders for prevention of riot. Section 39 reads as under:-
Sec.39:-
Issue of orders for prevention of riot etc.-(1)In order to prevent or suppress any riot or grave disturbance of peace the Commissioner and the District Superintendent, in areas under their respective charges, may temporarily close or take possession of any building or place, and may exclude all or any persons therefrom, or may allow access hereto to such persons only and on such terms as he shall deem expedient. All persons concerned shall be bound to conduct themselves in accordance with such orders as the authority making orders may make and notify in exercise of the authority here by vested in it.
18. Chapter VI of the Act of 1951 deals with the executive powers and duties of the Police. Section 64 lays down the duties of a Police Officer.
Section 64, Clauses (c) and (d) reads as under:-
Sec.64:-Duties of a Police officer.- It shall be the duty of every Police officer:
(c)to prevent to the best of his ability the commission of public nuisances;
(d)to apprehend without unreasonable delay all persons whom he is legally authorized to apprehend and for whose apprehension there is sufficient reasons;
19. Section 67 is with regard to regulating traffic etc. in streets. Section 67 reads as under:-
Sec.67:-Police to regulate traffic, etc. in streets.- It shall be the duty of Police Officer-
(a)to regulate and control the traffic in the streets, to prevent obstructions therein and to the best of is ability, to prevent the infraction of any rule or order made under this Act or any other law in force for observance by the public in or near the streets;
(b)to keep order in the streets and at and within public bathing, washing and landing places, fairs, temples, and other places of public resort and in the neighborhood of places of public worship during the time of public worship.
(c)to regulate resort to public bathing, washing and landing places, to prevent overcrowding thereat and in public ferry boats and to the best of his ability, to prevent the infraction of any rule or order lawfully made for observance by the public any such place or any such boat.
20. Section 68 reads as under:-
Sec.68:-Persons bound to confirm to reasonable orders of police.- All person shall be bounded to confirm to the reasonable directions a Police officers given in fulfillment of his duties under this Act.
21. Section 81 speaks of the power of the Police Officer to arrest without warrant any person committing in his presence in any street or public place any non-cognizable offence punishable under the Act of 1951, in the event of such person refusing to obey warning or to accompany the Police. Section 81 reads as under:-
Sec.81:-Refusal to obey warning or to accompany Police.-A Police officer may arrest without warrant any person committing in his presence in any street or public place any non-cognizable offence punishable under this Act, or under any rule thereunder and for which no express provision has been made elsewhere or under any other law for the time being in force, if such person -
(i)after being warned by a Police officer persists committing such offence, or
(ii)refuses to accompany the Police Officer to a Police Station on being required so to do.
22. Section 98 speaks about emergency duties of the Police. Section 98 reads as under:-
Sec.98:-Emergency duties of police. - (1)The State Government may, by notification in the Official Gazette, declare any specified service to be an essential service to the community:
Provided that such notification shall remain in force for one month in the first instance, but may be extended, from time to time, by a like notification.
(2) Upon a declaration being made under sub-section(1)and so long as it remains in force, it shall be the duty of every police officer to obey an order given by any superior officer in relation to employment upon or in connection with the service specified in the declaration; and every such order shall be deemed to be a lawful order within the meaning and for the purposes of this Act.
23. Section 102 deals with causing any obstruction in a street. Section 102 reads as under:-
Sec.102:-
Causing any obstruction in a street.
- No person shall cause obstruction in any street, or public place by allowing any animal or vehicle which has to be loaded or unloaded, or to take up or set down passengers to remain or stand therein longer than may be necessary for such purpose, or by leaving any vehicle standing or fastening any cattle therein or using part of a street or public place as a halting place for vehicles or cattle, or by leaving any box, bale, package or other thing what so ever in or upon a street for an unreasonable length of time or contrary to any regulation made and published by a competent authority by exposing anything for or setting out anything for sale in or upon any stall, booth, board, cask, basket, or in any other way whatsoever.
24. Section 160 provides for the immunity to a public servant for giving effect in good faith to any Rule, Order or direction. Section 160 reads as under:-
Sec.160:- No public servant liable as aforesaid for giving effect in good faith to any rule, order or direction issued with apparent authority. - No public servant or person duly appointed or authorized shall be liable to any such order or direction issued with apparent authority by the State Government or by a person empowered in that behalf under this Act or any rule, order or direction made given thereunder.
25. Section 161 provides for the protection to persons performing statutory duties classified from other private individuals. Section 161 reads as under:-
Sec.161:-
Suits or prosecutions in respect of acts done under colour of duty as aforesaid not to be entertained, or to be dismissed if not instituted with [one year]. -(1) In any case of alleged offence by the Commissioner, a Magistrate, Police Officer or other person, or of a wrong alleged to have been done to such Commissioner, Magistrate, Police Officer or other person, by any act done under colour or in excess of any such duty or authority as aforesaid,or wherein, it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained, or shall be dismissed, if instituted, more than [one year] after the date of the act complained of.
(2) In suits as aforesaid one months notice of suit to be given with sufficient description.-In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall be bound to give to the alleged wrong-doer one month s notice at least of the intended suit with sufficient description of the wrong complained of, failing which such suit shall be dismissed.
(3) Plaint to set forth service of notice and tender of amends.-The plaint shall set forth that a notice as aforesaid has been served on the defendant that a notice as aforesaid has been served on the defendant and the date of such service, and shall stage whether any, and if any, what tender of aments has been made by the defendant. A copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner f service thereof.
26. We shall now look into few relevant provisions of the Bombay Police Manual, 1975. Article 60 of the Manual provides guidance to the Police Officers in so far as use of fire arms in dispersing an unlawful assembly is concerned. Article 60 reads as under:-
Article 60:-
Use of fire arms in dispersing an unlawful Assembly. -(1) When armed Police are employed for the maintenance of order, they will be drawn up in strict military formation, each body being under the direct command and control of a responsible officer, ordinarily of or above the rank of Head Constable. Armed Police shall in no circumstances, save as hereinafter provided, be posted in such manner as to preclude the responsible officer from exercising direct control over every individual in the squad or platoon under his command.
If circumstances demand that armed Police should be employed on duties ordinarily performed by the unarmed Police, they should parade with batons or lathis and without arms or side-arms, or be required to pile arms in a suitable place; in the latter event a guard will be detailed and a sentry or sentries posted over the arms in the usual manner.
(2) With a view to dispelling an unfortunate impression in the public mind that the Police have a tendency to open fire rather readily and to ensure that the police force acts with a good deal of self restraint, the following guiding principles should be frequently and constantly emphasized, observed and explained to the subordinate police officers:-
(i) In dealing with unlawful assemblies, the Police Force should exercise the greatest self-restraint even at the cost of some suffering to them.
To minimize the danger of serious injuries to policemen at the hands of the members of such unlawful assemblies they should be supplied with fiber glass/steel helmets as far as practicable:
(ii) Firing should be resorted to only when it is unavoidable in the gravest danger and as a last resort when no other lesser means would be effective. Firing should be avoided as far as possible even in cases where the police are legally justified in doing so:
(iii)(a) Tear smoke should ordinarily be used before a cane charge unless the direction of the wind or/and the character and mood of the mob suggest that the tear smoke would be ineffective and the cane charge would be the only way to disperse a mob without recourse to firing.
The reasons for preferably using tear smoke are that it causes no permanent injury and can be very effective it used in adequate quantity.
(b) Tear gas should not be fired into closed rooms etc. because of the possible health hazards. Tear gas shells should not be fired in such areas, particularly congested areas, where it is likely to enter ill-ventilated dwellings and remain for a long time without scope for dispersal.
(c) The advantages of using tear gas have been mentioned in details on page 37 of the Gujarati booklet- Methods of Training in Crowd Control and Dispersal,1968. It should be ensured for this purpose that the Police are in possession of adequate and fresh stock of tear gas and that it can be made available at short notice at any place in the State. A situation should not be allowed to arise in which due to shortage of tear gas, the application of greater force than would otherwise have been necessary had to be employed;
(iv) All possible measures should be taken to ensure that situations are controlled right from the beginning and are not allowed to develop and get out of hand. The need to take anticipatory preventive action requires to be emphasized and should be clearly understood. If proper attention is given to such timely preventive steps, a good deal of subsequent trouble may be avoided. The Police Officers should be given proper training for such preventive action which might consist of
(a)breaking up of an assembly in initial stages,
(b)show of force in early stages, and
(c)arrest of goondas, leaders and trouble makers.
The senior officer present has to judge the effect of each one of such steps in the situation before him; and he should bear in mind, and continuously consider, the various aspects involved.
(v) When firing becomes inevitable, the aim should be kept low, so as to avoid fatal casualties as far as possible, and it should be directed towards the most threatening part of the crowd. It should be borne in mind that the object of firing is not to kill any one but to incapacitate temporarily. The aim should never be at the body or the head, but it should always be low at the legs. Necessary training in this aspect should be imparted to Policemen;
(vi) (a) Before actual firing is resorted to, the Magistrate or the Police Officer concerned should give sufficient and clear warning to the rioters over loud-speaker fitted to police vehicles, etc. where loud-speaker arrangements cannot be made, hand mega-phones should be employed for giving such warnings. The rioters should also be warned that no blanks will be used and that the firing will be effective. The officer should reasonable satisfy himself that his warning was heard and understood but went unheeded, before he orders firing.
(b) It is necessary to give three warnings in sequence invariably on such occasions before force is used. These three warnings are flashing of the banner, oral warning through portophone or megaphone as the case may be and finally the sounding of the bugle. It is necessary that this sequence should invariably be followed and as far as practicable before the notice resort to firing to disperse an unlawful assembly. The officer in-charge of the riot squad or the firing squad as the case may be must properly check the battery operated megaphone which the squad may be carrying so that there is no last minute hitch in regard to administering of these three warnings.
(3) When a Magistrate directs the Police to disperse a mob under section 129 of the Criminal Procedure Code, it will be for the Magistrate to decide the kind and degree of force to be used for dispersing the unlawful assembly. The Police Officers present can always offer advice to him in the matter, but the Police will be acting under the Magistrate s orders so far as dispersal of the unlawful assembly is concerned. "
27. We shall now look into the few relevant provisions of the Criminal Procedure Code, 1973, more particularly Chapter X i.e. Maintenance of Public Order and Tranquility. Section 129 reads as under:-
"129.
Dispersal of assembly by use of civil force.----(1)
Any Executive Magistrate or officer incharge of a police station or, in the absence of such officer incharge, any police officer, not below the rank of a sub-inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly.
(2) If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer referred to in sub-section(1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law.
28. Section 130 reads as under:-
Sec.130:-
Use of armed forces to disperse assembly. - (1) If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces.
(2) Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law.
(3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting ad detaining such persons.
29. Section 132 reads as under:-
Sec.132:- Protection against prosecution for acts done under preceding sections.-(1)No prosecution against any person for any act purporting to be done under section 129, section 130 or section 131 shall be instituted in any Criminal Court except -
(a) with the sanction of the Central Government where such person is an officer or member of the armed forces;
(b) with the sanction of the State Government in any other case.
(2)(a) No Executive Magistrate or police officer acting under any of the said sections in good faith;
(b) no person doing any act in good faith in compliance with a requisition under section 129 or section 130;
(c) no officer of the armed forces acting under section 131 in good faith;
(d) no member of the armed forces doing any act in obedience to any order which he was bound to obey, Shall be deemed to have thereby, committed an offence.
(3) In this section and in the preceding sections of this Chapter -
(a) the expression armed forces means the military, naval and air forces, operating as land forces and includes any other Armed Forces of the Union so operating;
(b) "officer , in relation to the armed forces, means a person commissioned, gazetted or in pay as an officer of the armed forces and includes a junior commissioned officer, a warrant officer, a petty officer, a non-commissioned officer and a non- gazetted officer;
(c) "member", in relation to the armed forces, means a person in the armed forces other than an officer.
30. Thus, the provisions of the Code of Criminal Procedure, 1973 referred to above as well as the provisions of the Bombay Police Manual, 1975 would suggest that in dealing with unlawful assemblies, the Police force should exercise the greatest self-restraint even at the cost of some suffering to them. The tear smoke should ordinarily be used before a cane-charge unless the direction of the wind and/or the character and mood of the mob suggest that the tear smoke would be ineffective and the cane charge would be the only way to disperse a mob without recourse to firing. As provided in the Manual itself, the reasons for preferably using tear smoke are that it causes no permanent injury and is harmless if used in adequate quantity. Even according to the provisions of the Code of Criminal Procedure, 1973, every officer of the armed force shall use as little force and do as little injury to the person and the property, as may be consistent with dispersing the assembly and arresting and detaining such persons.
31. In the present case, what we have noticed is that the Police exhibited more of a force of vengeance against the mob as the mob refused to disperse. If four Policemen together were able to arrest a member of an unlawful assembly or apprehend him, then in such circumstances whether there was any need or necessity at that stage to hit him all over the body with sticks. Whether the Police has any power to punish a wrongdoer or is it the function of the judiciary?
32. In this matter, we have to our advantage two video clippings on the Compact Disc, which had been submitted before us for our perusal. A laptop was made available for us to watch the two video clippings. We had a close watch of the two video clippings twice. The two clippings which are on the CD are as follows:-
(1) Rajkot tense as Police lathi-charge protesters-TV9.
(2) Tension in specific locality of Rajkot, Police in action.
A detailed description of the clippings are as under:
A. Rajkot tense as Police lathi-charge protesters - TV9.
(Length of clip 1 min 37 secs).
Sl.No. Time Frame in the clip(min.sec.) Details.1
0.00-0.13 News anchor reporting about the incident that took place at Rajkot could be seen having 2 0.14-0.25 People could be seen having gathered on the road peacefully outside their locality. Police personnel s are present.3
0.26-0.35 Police personnel s wearing helmet and having lathi in hand are approaching the crowd.4
0.36-0.43 2 police personnel s bring a man out and take away a stick from him and give it to the third police personnel. The man is quietly walking with the 2 police personnel s and all of a sudden without any provocation from him, the police starting hitting the man with the lathis which is in their hand. The 2 police personnel s use full power and force to hit the person eight times with their lathis .
Having no option the person attempts to run so as to save himself from the lathi blows . 1 police personnel runs behind the person and manages to hit him again with the lathi .5
0.44-0.51 1 Tear gas shell lobbed by a police personnel. About 5-6 police personnel s with lathis in hand are hitting and kicking a person who is on the ground. The police personnel s use full power to hit the person continuously with their lathis .6
0.53-0.59 In this segment, a police personnel waring helment is continuously hitting a senior citizen lady who is wearing green saree with yellow blouse. The police personnel hits the lady continuously five times with the lathi using full force. The saree of the lady drops off her upper body and her blouse is exposed. Despite this the police personnel does not stop hitting the lady nor tries to help the lady in covering up her modestly. Few police personnel s watch the concerned police personnel lashing out lathi blows on the lady and do nothing.7
1.00-1.37 4-5 women who are standing under a tree are threatened by police personnel s. 1 lady police constable is seen raising her lathi in an attempt to hit the women. The women walk away due to the threat by the police personnel s. 1 tear gas shell is lobbed to disperse the crowd which was already in a lane. 2 police personnels pick up stones and throw them towards the crowd.
Police Inspector picks up stone and throws it towards the crowd. Police personnel s enter the lane and abruptly halt near the public urinal.
About 5-6 police personnel s with lathis in hand are hitting and kicking a person who is on the ground.
The police personnel s use full power to hit the person continuously with their lathi . 1 police personnel holding a thicker size lathi is also hitting the person. A police personnel helps the person to get up and tells him to go away. The person gets up and is quietly walking away despite that another police personnel kicks the person on his rear.
There is a re-run of the lady in green saree with yellow blouse who had been assaulted.
Police Inspector and other police personnel s enter a public urinal where ladies had hidden themselves so as to escape from the police. The Police Inspector is seen lifting his lathi . Women are coming out of the public urinal.
B. Tension in specific locality of Rajkot, Police in action.(Length of clip 1 min 30 secs).
Sr. No. Time Frame in the clip(min.sec.) Details 1 0.00-0.15 About 5-6 police personnel s with lathis in hand are hitting and kicking a person who is on the ground. The police personnel s use full power and force to hit the person continuously with their lathis . 1 police personnel holding a thicker size lathi is also hitting the person on his back side near the spine area. A police personnel helps the person to get up and tells him to go away. The person gets up and is quietly walking away despite that another police personnel kicks the person on his rear.
20.16-0.27 4-5 women who are standing under a tree are threatened by police personnel s. 1 lady police constable is seen raising her lathi in an attempt to hit the women. The women walk away due to the threat by the police personnel s.
30.28-.035 1 tear gas shell lobbed to disperse the crowd which was already in a lane. 2 police personnels pick up stones and throw them towards the crowd.
40.36-0.54 Police Inspector picks up stone and throws it towards the crowd. Police personnel s enter the lane and abruptly halt near the public urinal.
50.55-0.58 They enter the gate and come upto the door of the public urinal, which is closed as there are women hiding inside to escape from the police. 1 Police personnel is banging the grill door of the public urinal with the lathi . Police Inspector charges towards the grill door of the public urinal.
60.59-1.10 1 police personnel uses his lathi and banks it on the left side window of the public urinal. Police Inspector opens the grill door and enter s inside the public urinal. On close observation, he is seeing picking up the lathi . There is a woman coming out of the public urinal and her expression shows that she was scared for her life.
71.11-1.23 Police remove dustbins which were lying in the middle of the road. There is a crowd of persons standing at a distance and quietly watching.
81.24-1.30 People are seeing at the entrance of a locality running away from the police.
Medical evidence on record:
1. Karanji Valjibhai Solanki, aged 9 years was medically examined at Pandit Dindayal Upadhyay Medical College & Hospital, Rajkot on 2nd July 2012. The medical certificate issued by the Medical Officer, Pandit Dindayal Upadhyay Medical College & Hospital reveals that the injured gave history before the doctor stating that on 25th June 2012, the Police assaulted him with sticks and fisticuff at his house. The certificate further reveals that there was swelling and tenderness at upper part of genital region at the root of penis.
2. Mukesh Valjibhai Solanki, aged 16 years was also examined at Pandit Dindayal Upadhyay Medical College & Hospital, Rajkot on 2nd July 2012.
The medical certificate issued by the Medical Officer, Pandit Dindayal Upadhyay Medical College & Hospital reveals that the injured gave history before the doctor stating that on 25th June 2012, the Police assaulted him with sticks and fisticuff at his house. The certificate further reveals that there was tenderness on left ankle laterally.
3. Naresh Saresha, aged 12 years was examined at Pandit Dindayal Upadhyay Medical College & Hospital, Rajkot on 2nd July 2012. The medical certificate issued by the Medical Officer, Pandit Dindayal Upadhyay Medical College & Hospital reveals that the injured gave history before the doctor stating that on 25th June 2012, the Police assaulted him with sticks and fisticuff at his house. The certificate further reveals that there was tenderness at right foot.
4. Prafulbhai Mavjibhai Danger, aged 18 years was examined at Pandit Dindayal Upadhyay Medical College & Hospital, Rajkot on 2nd July 2012. The medical certificate issued by the Medical Officer, Pandit Dindayal Upadhyay Medical College & Hospital reveals that the injured gave history before the doctor stating that on 25th June 2012, the Police assaulted him with sticks and fisticuff at his house. The certificate further reveals that there was tenderness at right ankle on heel.
5. Rupaben Savjibhai Sonderva, aged 16 years was examined at Civil Hospital, Ahmedabad on 30th July 2012. The medical certificate issued by the Medical Officer, Civil Hospital, Ahmedabad reveals that the injured gave history before the doctor stating that on 25th June 2012, the Police assaulted her with sticks and gave kicks and that she fell from the staircase due to kicks inflicted by the Police. The spinal injury cleared minimal wedge compression L, & SP1.
Thus, for the purpose of ascertaining the facts, therefore, we not only have before us the averments made in the pleadings and the affidavits in support thereof, but we also have the advantage of viewing the two video clippings on the Compact Disc. At the outset, we would like to observe that none of the parties has alleged that any of the two video clippings on the Compact Disc which have been placed on record are 'doctored'. In fact, viewing of the two video clippings on the Compact Disc shows that they corroborate each other with regard to what has been recorded therein. The only grievance raised by Mr. Jani, the Government Pleader as regards the two video clippings is that it is a one-sided picture that has been highlighted and not the actual picture.
33. We are convinced after watching the two video clippings on the Compact Disc that the Policemen had acted in a very highhanded and barbaric manner. Even when a person was apprehended and was in a helpless condition, the Police resorted to assault with lathis for no reason. It appears that the only idea in resorting to such indiscriminate heavy lathi-charge was with a view to create panic and terror in the minds of the people who had assembled to protest the murder of their leader. It also appears to us that the Police had practically no idea as to how such a situation should be faced, more particularly when the Police is expected to act according to the provisions of the Bombay Police Manual as well as the provisions of the Code of Criminal Procedure. One of the most disturbing part which we could watch in the two video clippings is that the Policemen were themselves picking up stones and were pelting the same on the crowd. It is possible that some of the miscreants in the mob may have pelted stones on the Policemen, but it is not expected of the Police to pick up those stones and pelt them back on the mob. This is something which we have not heard of or have never seen in any case.
34. Where issues of public concerns arise, such as law is being violated or is not being enforced or where there is violation of the fundamental rights or there is exercise of arbitrary action or power by the authority of a State but where no personal benefit to the petitioner is involved, in such a case PIL can be entertained by the Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India.
35. Applying the aforesaid principle to the present case, we find that what is involved are two issues of great public importance. First, what is the extent and manner of force which should be used by the Police in effecting control of a crowd and secondly, the manner in which the persons who are injured as a result of the lathi-charge should be handled or treated. The excessive use of force can be arbitrary and may even result in violation of Article 21 of the Constitution. In such circumstances, we see no reason as to why facts should not be determined on the basis of what is recorded in the two video clippings on the Compact Disc. It is possible that each and every event which occurred on the fateful day may not have been shot by the persons of the media, nevertheless for the view that we are taking, that the Police acted in a very highhanded, arbitrary and barbaric manner on demonstratively evidenced videos which are recorded in the two video clippings, the correctness of which is not disputed, it is possible to decide this petition so as to fix the liability of the erring Police officers.
36. The expression life and personal liberty occurring in the Article 21 of the Constitution of India has been interpreted by various decisions of the Supreme Court to include constitutional guarantee against the torture, assault or injury against a person arrested and in custody as well as use of excessive force by the Police in the discharge of their duties on some specific occasions like the dispersal of a mob by resorting to firing or indiscriminate heavy lathi-charge. The Police figure as Entry 2 in State List in the Seventh Schedule of the Constitution, thereby making State Government primarily responsible for maintaining public order. Invariably, police, which is a part of the civil administration, is at the forefront in maintaining law and order under the framework of constitutional governance based on principles of Sovereign Socialist Secular Democratic Republic to secure fundamental right of its citizens. In consonance with the idea of democratic policing, a Code of Conduct for the Police in India was adopted at the Conference of Inspectors General of Police in 1960 and circulated to all the State Governments.
Code of Conduct for the Police in India (1960):
1.
The police must bear faithful allegiance to the Constitution of India and respect and uphold the rights of the citizens as guaranteed by it.
2. The police are essentially a law enforcing agency. They should not question the propriety or necessity of any duly enacted law. They should enforce the law firmly and impartially, without fear or favor, malice or vindictiveness.
3. The police should recognize and respect the limitations of their powers and functions. They should not usurp or even seem to usurp the functions of the judiciary and sit in judgment on cases. Nor should they avenge individuals and punish the guilty.
4. In securing the observance of law or in maintaining order, the police should, as far as practicable, use the methods of persuasion, advice and warning. When the application of force becomes inevitable, only the irreducible minimum of force required in the circumstances should be used.
5. The prime duty of the police is to prevent crime and disorder and the police must recognize that the test of their efficiency is the absence of both and not the visible evidence of police action in dealing with them.
6. The police must recognize that they are members of the public, with the only difference that in the interest of the society and on its behalf they are employed to give full time attention to duties, which are normally incumbent on every citizen to perform.
7. The police should realize that the efficient performance of their duties would be dependent on the extent of ready cooperation that they receive from the public. This, in turn, will depend on their ability to secure public approval of their conduct and actions and to earn and retain public respect and confidence. The extent to which they succeeded in obtaining public cooperation will diminish proportionality the necessity of the use of physical force or compulsion in the discharge of their functions.
8. The police should always keep the welfare of the people in mind and be sympathetic and considerate towards them. They should always be ready to offer individual service and friendship and render necessary assistance to all without regard to their wealth and/or social standing.
9. The police should always place duty before self, should maintain calm in the face of danger, scorn or ridicule and should be ready to sacrifice their lives in protecting those of others.
10. The police should always be courteous and well mannered; they should be dependable and impartial; they should possess dignity and courage; and should cultivate character and the trust of the people.
11. Integrity of the highest order is the fundamental basis of the prestige of the police. Recognizing this, the police must keep their private lives scrupulously clean, develop self-restraint and be truthful and honest in thought and deed, in both personal and official life, so that the public may regard them as exemplary citizens.
12. The police should recognize that their full utility to the State is best ensured only by maintaining a high standard of discipline, faithful performance of duties in accordance with law and implicit obedience to the lawful directions of commanding ranks and absolute loyalty to the force and by keeping themselves in the state of constant training and preparedness.
37. In our opinion, merely because mob is present or does not disperse despite request to that effect by the Police cannot be a sufficient reason for resorting to such heavy and brutal lathi-charge. We are saying this more particularly when individuals have been picked up and targeted. One can understand that if a mob armed with dangerous weapons like sword, dagger etc. target the public or properties with a view to cause damage or even charge towards the Police force, then perhaps the Police could be justified in resorting to such heavy lathi-charge. No property, movable or immovable can be more valuable or precious than the human life. There is nothing to show that the situation had become so volatile so as to have necessitated the Police resorting to heavy lathi-charge and that too targeting children and women. At the cost of repetition, we state that what is painful is the fact that even when a member of the unlawful assembly meekly surrendered before the Police, the Police with a view to teach a lesson to such person, led a brutal assault with lathi, which is not permissible in law.
38. We are of the opinion that this is a fit case wherein the State-respondent should be directed to pay compensation to the victims of Police atrocity.
It was sought to be contended by Mr. Jani, the learned Government Pleader appearing for the State-respondent that the Court in exercise of its jurisdiction under Article 226 of the Constitution should not award any compensation because the Police acted in good faith and whatever accesses are complained of, they could be said to have been in discharge of their official duties. Even if any wrong has been committed, it was submitted that the proper remedy is to take resort to an action in torts. Mr. Jani went to the extent of submitting that the victims could also file criminal complaints in the Court of law and the law would take its own course.
39. In our opinion, there is no merit in the aforesaid contention. Where as a result of accesses having been committed by the State or its officers any physical harm or disability or death is caused, for which action there is absolutely no justification, the Courts have to, in appropriate cases, and depending upon the facts of each case, award suitable compensation. We may only say, as explained by the Supreme Court in Nilabati Behera (Smt) Alias Lalita Hehera Vs. State of Orissa and others (1993) 2 SCC 746, that the relief of monetary compensation, as exemplary damages, in proceedings under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in proceedings under Article 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. As explained by the Supreme Court in a very recent pronouncement in the case of Dr. Mehmood Nayyar Azam Vs. State of Chattisgarh & ors. (2012) 8 SCC pg.1, the payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law, but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. As explained by the Supreme Court in Dr. Mehmood Nayyar Azam (supra), the compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction and/or prosecute the offender under the penal law.
40. In Delhi Judicial Services Association v. State of Gujarat, while dealing with the role of police, this Court condemned the excessive use of force by the police and observed as follows:-
The main objectives of police is to apprehend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure law and order to protect citizens life and property. The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and police are complementary to each other . It is unfortunate that these objectives have remained unfulfilled even after 40 years of our Constitution. Aberrations of police officers and police excesses in dealing with the law and order situation have been subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it. The police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the police and it must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated.
41. In Rudul Sah v. State of Bihar, AIR 1983 SC 1086: (1983 Cri LJ 1644) the petitioner had been detained illegally in the prison for over 14 years after his acquittal in a full dress trial. When he was not released, he filed a writ of Habeas Corpus for his release from illegal detention. A contention was raised as to whether for the wrong done to the petitioner the Court should, in exercise of its jurisdiction under Art. 32, direct compensation to be paid. On behalf of the State it had been contended that Art. 32 could not be used as a substitute for the enforcement of rights and obligations which could be enforced efficaciously through the ordinary presses of courts Civil and Criminal. While noting that a money claim was ordinarily to be agitated in and adjudicated upon in a suit instituted in a Court of lowest grade competent to try it, the Court nevertheless held that where it comes to the conclusion that the detention was illegal then to refuse to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated.
42. Elaborating the powers of the Court in granting relief in cases involving violation of Art.21, the Supreme Court further observed in Rudul Sah s at page 1089(of AIR 1983 SC1086): (at p.1647 of 1983 Cri LJ 1644) as follows;
Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary compensation. Administrative sclerosis leading to fragrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right, to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If Civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting, that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner s right. It may have recourse against those officers.
43. Another case which came up before the Supreme Court where compensation was awarded was that of PUDR V. State of Bihar, AIR 1987 SC 355: (1987 Cri LJ 528). In that case, about 600 to 700 poor peasants and landless people had collected to hold a peaceful meeting within the compound of a liberty. Without any previous warning by the police, the said people were surrounded and the police opened firing as a result of which several people were injured and at, least 21 persons, including children died. The police interestingly enough, started a case implicating several innocent people including even some other people, who had been killed in the firing. PUDR filed a writ petition under Art. 32, inter alia, wanting that orders be issued directing the payment of full and proper compensation to the victims. One of the other directions which was sought was that the police should withdraw the case filed by it against the people. In the affidavit filed in opposition, the factual assertions raised in the petition were disputed. But it was brought to the notice of the Supreme Court that a writ petition had been filed in the Patna High Court, prior to the filing of the aforesaid petition under Art. 32, and the same was pending. The Supreme Court did not transfer to itself the petition under Article 226 from the High Court but came to the conclusion that:
We are of the view that it would be appropriate that the matter is examined by the High Court.
The Supreme Court nevertheless awarded compensation of Rs. 20,000/- in case of every death and Rs. 5,000/- to each of the injured.
44. From the aforesaid it is clear that the Supreme Court, dealing with the public interest litigation, thought it proper that the allegations against the police, in that case, should be examined by the High Court exercising jurisdiction under Art. 226 of the Constitution. In the present case also merely because FIRs have been lodged against some of the members of the alleged unlawful assembly, cannot be a ground for the court not to exercise its jurisdiction under Article 226 of the Constitution.
45. People Union for Democratic Rights v. Police Commissioner (1989) 4 SCC 730 was another case where, in exercise of its jurisdiction under Art. 32 of the Constitution, compensation to victims of police atrocities was awarded by the Supreme Court. In that case the police had collected some people and taken them to the Police Station for doing work. When the workers demanded wages, they were beaten up by the police and one person succumbed to his injuries. Though the case was being examined for criminal prosecution of the police officers concerned, nevertheless the family of the deceased was directed to be paid Rs. 50,000/- as compensation. The other labourers were also directed to be paid different sums of money.
46. An important decision on the question with regard to award of compensation in such cases is that of Saheli v. Commissioner of Police (1990) 1 SCC 422: (AIR 1990 Supreme Court 513). The question of grant of compensation, in this case, arose because of the action of police officers who, at the behest of the landlord, beat a tenant Kamlesh Kumari and her son Naresh Kumar. Naresh subsequently succumbed to his injuries. Thereupon a news item about the incident appeared in the Hindi newspaper and a petition under Art. 32 of the Constitution was filed wherein besides the landlord, two police officers were also impleaded as respondents. The Supreme Court held that the son of the tenant had been done to death on account of the beating and assault by the agency of the sovereign power acting in violation and excess of the powers vested in such agency. The mother of the child Kamlesh Kumari, in the considered opinion of the Supreme Court was so entitled to get compensation for the death of her son from respondent 2, Delhi Administration.
It was further observed that (at p.516 of AIR):
11. An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In case of assault, battery and false imprisonment the damages are at large and represent a solution for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the SHO, Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees. Respondent 2, Delhi Administration is liable for payment of compensation to Smt. Kamlesh Kumari for the death of her son due to beating by the SHO of Anand Parbat Police Station, Shri Lal Singh.
The Supreme Court ultimately awarded a sum of Rs.75,000/- by way of compensation and further observed that the Delhi Administration may take appropriate steps for the recovery of the amount paid as compensation from the officers who were found responsible.
47. In Prithipal Singh & ors Vs. State of Punjab and ors (2012) 1 SCC pg.10, the Supreme Court while condemning Police atrocity observed in para 86 as under:-
"Police atrocities are always violative of the constitutional mandate, particularly, Article 21 (protection of life and personal liberty) and Article 22 (person arrested must be informed the grounds of detention and produced before the Magistrate within 24 hours). Such provisions ensure that arbitrary arrest and detention are not made. Tolerance of police atrocities, as in the instant case, would amount to acceptance of systematic subversion and erosion of the rule of law. Therefore, illegal regime has to be glossed over with impunity, considering such cases of grave magnitude."
48. In the circumstances referred to above, we propose to pass the following final order:-
[1] The State-respondent is directed to pay monetary compensation to the tune of Rs. 25,000/- to each of the victims, viz. (1) Karanji Valjibhai Solanki, aged 9 years, (2) Mukesh Valjibhai Solanki, aged 14 years, (3) Naresh Saileshbhai Saresha, aged 11 years, (4) Prafulbhai Manjibhai Danger, aged 16 years, (5) Kantaben Mohanbhai Chavda, aged 38 years and (6) Rupaben Savjibhai Sonderva, aged 16 years, as exemplary damages, within a period of four weeks from today, and be realized from the erring officers in equal proportions from their salary, as thought appropriate by the competent authority of the State. In case of those victims who are minor, the amount should be paid to the natural guardian of such minor after proper identification.
[2] The Principal Secretary, Home Department, State of Gujarat is directed to constitute a Committee and consider the allegations against each of the Police Officer responsible for the indiscriminate assault, based on the evidence on record and also any other evidence which may be available with the Department, so as to fix their penal liability. If the enquiry reveals that any act of an individual Police Officer was in excess of his duties or in violation of the provisions of the Code of Criminal Procedure as well as the Bombay Police Manual, then in such circumstances appropriate prosecution be instituted against such erring Police Officers. This exercise shall be completed within a period of eight weeks from today.
With the above observations and directions, we close this public interest litigation and dispose of the same accordingly with no order as to costs.
(PER : HONOURABLE THE CHIEF JUSTICE) I had the advantage of going through the judgment just delivered by my learned brother, Pardiwala, J. and I fully agree with the observations made and the conclusion arrived at, by His Lordship. However, in view of the importance of the subject-matter of this litigation, I propose to add a few words of my own.
My learned brother has in detail discussed the facts involved, the submissions of the learned Government Pleader and the learned amicus curiae and also the relevant laws on the subject and as such, I refrain from repeating those.
Mr. Jani, the learned Government Pleader, tried to impress upon us that the photographs and the compact disc which have been placed before us show one-sided version of the incident and that the attacks upon the police forces by the unruly mob have not been included in those materials. Mr. Jani contended that despite persuading the errant crowd for more than two hours, the people, who had created obstruction on the road, refused to withdraw and started blocking the main road with dustbins of the Municipality and when the police tried to remove the dustbins, they started throwing stones towards the police, as a result, three police personnel were injured and two police vehicles were damaged. According to Mr. Jani, even though repeated warnings to the public not to throw stones were given, they having paid no heed to the requests, the police was compelled to fire twelve teargas shells and ultimately, as a last resort, it used mild lathi charge.
We have over and over again seen the incidents of lathi charge through the compact disc played in open court. It is true that those photographs do not show the incident of the alleged throwing of stones by the errant public, but on the other hand, reflects at least one incident of throwing stone by the police personnel towards the public.
We, for the sake of argument, are prepared to accept the version of the police authority that some miscreants had blocked the main road and also pelted stones towards the police personnel. But the question is, if some mischief makers attack the police with stones at the time they are sought to be removed for the purpose of clearing the road, whether such fact gives a right to the police to do violence to even the innocent persons in the public place who are not involved with those troublemakers.
Public road or public place is open to the public in general unless any prohibitory order under the law is imposed. People from all spheres of life, whether he is a mere child or an old man, whether he is physically fit or infirm due to illness, for the purpose of his daily avocation is required to pass through or gather in the public places. A child is required to attend his school, an infirm is required to attend doctors, the doctors are required to attend their chambers or nursing homes, the teachers are required to go to their school or colleges, a daily wager is required to go to his place of work for earning his bread, and all of them have no other alternative but to pass through the public places. When some wrongdoers commit any offence in a public place, it is the duty of the police to prevent them from doing such mischief and in the process they can take all lawful steps for preventing crime. The question before us is whether in preventing such crime, the police personnel are vested with the authority to use force against the innocent persons in the public place simply because at the time of committing crime by some lawbreakers, by chance, they were also present at the spot notwithstanding the fact that such persons are, in no way, connected with the offence committed by a limited number of miscreants.
The "one-sided video recordings", that we have seen, have struck us with horror. We are shocked to find how a police can mercilessly apply recurring lathi charges on an elderly lady who was simply passing through the road. She did not dare to resist nor did she complain against such cruel act of the police who might be of his son's age, as if, she has accepted the incident as a law that the police has the legitimate right to apply lathi even on an innocent person in the public place if wrong is done by some others against the police at or near that time. We have also seen another incident when although a person is lying on the ground after being beaten by police without any protest or retaliation, the latter is continuously applying lathi on such person as if the victim was "bait" before a hungry lion. In the above two incidents, it was apparent that those two persons had no involvement, at least, at the relevant point of time and even if we assume for the sake of argument that they had any involvement in the past in the blockage of the road, at least, at the time of being mercilessly beaten, as it appears from the photographs, they were just peaceful passers-by and there was no necessity of applying brutal force on them.
In our opinion, it is the duty of the police to prevent crime and in the process, they have right to use reasonable force against the wrong doer as prescribed by law; but they have no right to touch any innocent person on the street simply because at the relevant time of mischief committed by some others, they also happened to be present at the public place. On the contrary, it is the duty of the police to make arrangement for the safety and the security of those innocent persons present at the spot who are in no way connected with the misdeed of the others.
If we accept the contention of Mr. Jani that in the situation like the one involved in this case, the police did not commit any wrong by applying lathi charge on the passers-by for the purpose of clearing the road-blockage, even though not involved in riotous act, it would amount to deny the protection of life and liberty enshrined under Article 21 of the Constitution to the innocent citizens in the above situation, as if, they cannot lawfully claim their safety in such adverse situation. To accept such contention of Mr. Jani means to approve a proposition of law that if the innocent people in the above situation are unable to move out of the reach of the aggressive police by any means, law does not protect their safety and security and that the police personnel are free to do harm to those innocent persons who could not promptly leave the place. We are afraid we are unable to subscribe to the above contention of Mr. Jani.
In a situation like the present one, in our opinion, the police should be cautious to see that the innocent persons, who by chance happen to be at the spot, are safe and should make special endeavour for their safety and security by not treating them as one of the miscreants but by protecting them.
In the case before us, the police authority, it goes without saying, has exceeded its power and there was no justification of causing injury to the persons indicated by my learned brother in the absence of any incriminating material against them. None of the persons injured is even named in the FIR.
In the above circumstances, I fully subscribe to the view taken and the order proposed, by my learned brother.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 55 of 55