Madras High Court
R.Bhagwan Singh vs The Government Of Tamil Nadu on 11 October, 2002
Author: V.Kanagaraj
Bench: V.Kanagaraj
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11/10/2002
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
WRIT PETITION NO.21120 OF 2001
AND W.P.NOS.21121 AND 21122 OF 2001
AND W.M.P.NO.31222 OF 2001.
1.R.Bhagwan Singh
2.K.N.Arun
3.B.Jayashree
4.Ms.K.Jayalakshmi
5.Dr.Arul Aram
6.Mr.T.Sigamani
7.S.Ramaswamy
8.Mrs.R.Revathy
9.D.Suresh Kumar ... Petitioners in all the WPs.
-Vs-
1.The Government of Tamil Nadu,
rep.by its Secretary,
Home Deprtment,
Fort St.George,
Chennai-9.
2.The Director General of Police,
Kamaraj Salai,
Chennai.
3.The Regional Director,
Central Bureau of Investigation,
Rajaji Bhavan,
Besant Nagar,
Chennai. ... Respondents in all the WPs.
All the writ petitions are filed under Article 226 of the
Constitution of India praying to issue writs of Mandamus as stated therein.
!For the petitioners
in all the Wps. : Mr.P.Chidambaram
Senior Counsel for
Mr.S.Silambanan
^For R.1 & R.2 : Mr.N.R.Chandran,
Advocate General for
Mr.D.Krishna Kumar,Spl.G.P.
For R.3 : Mr.Jacob P.Daniel,
Spl.Public Prosecutor (CBI)
:COMMON ORDER
All the above writ petitions have been filed by nine journalists praying to issue Writs of Mandamus against the respondents (1) Government of Tamil Nadu, Secretary, Home Department, (2)The Director General of Police, Tamil Nadu, Chennai and (3)Regional Director, C.B.I., Chennai, respectively praying to (1)direct the respondents to register F.I.R. Before R.3 relating to the incidents at the Marina, Chennai, on 12.8.2001, (2) to direct R.3 to investigate and prosecute any and every person found to have violated the constitution and the laws by ordering and conducting a savage assault on journalists covering the procession on 12.8.2001 and (3)to direct respondents 1 and 2 to pay compensation to the journalists who suffered injuries to their person and damage to their properties consequent to the assault on 12.8.2001.
2. In the common affidavit filed in support of all the above writ petitions, the petitioners who are alleged to be the members of the ` Journalists Action Group', a body constituted voluntarily by a majority of Journalists in Chennai for ventilating the grievances of the Journalists fraternity, would submit that with the avowed object of protecting the interests of the Journalists, the general public and the Constitutionally guaranteed freedom of press and expression, when the petitioners were covering the procession organised by a Political Party on 12.8.2001, for no apparent reason but evidently to intimidate and frighten the Journalists and force them to abandon the coverage of procession, the Police Officers and their men and women under the control and supervision of respondents 1 and 2, directed and conducted the savage, wanton and indiscriminate assault on the journalists.
3. Prior to assessing the events encircling the episode dated 12.8.2001, the petitioners in their attempt to give a glimpse of the state of affairs that was prevalent in the State of Tamil Nadu after the advent of the A.I.A.D.M.K. Party to power in the State, would submit that a hostile atmosphere prevailed in between the D.M.K. and A.I.A. D.M.K. parties and the Government, under the impression that the press was hostile to them, adopted a confrontationist attitude towards the media and the media persons, the first incident being on 27.6.2001 when a T.V. Reporter was arrested and remanded to custody for covering the activities of a D.M.K. Leader at Villupuram and as a protest, journalists numbering 150 courted arrest at Chennai on 29.6.2001 resulting in the release of the arrested journalist Mr.G.Suresh on bail at the instance of the State Government. The next incident cited was on 30.6.2001 when the former Chief Minister of Tamil Nadu Mr.M. Karunanidhi was arrested and remanded to judicial custody which the journalists could not cover because of obstruction caused by the police and the Government.
4. The main incident occurred on 12.8.2001, when the opposition DMK party conducted a procession against `Police Atrocities', the media was engaged in covering the events and at about 7.30 pm. on 12.8.2001 , a savage attack was launched on the journalists in order to force them abandon the coverage near Marina, which according to the Fact Finding Committee consisting of a group of eight journalists, was a deliberate and pre-planned attempt by the Police to silence the journalists and keep them under fear psychosis; that the purpose was to destroy and obliterate the first-hand evidence – visual footage and contemporaneous notes of the journalists collected on the spot – so that damaging the evidence of the police complicity in a mob attack on the rally would not come to light. Craving leave to file the materials and reports submitted by the Fact Finding Committee, the petitioners would assert that since their very complaint is against the police and the State, there is hardly any chance for the petitioners to get a fair investigation done followed by institution of criminal proceedings against the miscreants including seeking compensation for the victims.
5. Regarding the Enquiry Commission constituted by the State Government as per the Press Release of 17.8.2001, the petitioners would state that the Commission of Enquiries Act, 1952, can hardly do any justice to the affected parties that it cannot enforce the Constitution or the Laws of the Land or punish respondents 1 and 2 if they are found to have violated the Constitution and the Laws; that it is rather a well-known tactic of the State Government to postpone and dilute the grievance of the complainants like the petitioners which need to be addressed and redressed expeditiously and no fruitful solution will ensure by setting the law on motion after a long delay; that though the report of the Fact Finding Committee was submitted to his Excellency the Governor and the Chief Secretary of the Government of Tamil Nadu by the journalist organisation viz. the Madras Union of Journalists, Chennai Press Club and the Madras Reporters Guild as on 8.9.2001, no action has been taken by the Government till date and therefore an impartial inquiry, investigation and prosecution particularly by CBI is quite necessary in this case. On such averments, the petitioners would pray for the reliefs extracted supra.
6. In the counter affidavit filed on behalf of the first and second respondents respectively the Government of Tamil Nadu and the Director General of Police, they would submit that the DMK party, to protest against the arrest of Mr.M.Karunanidhi, took out a procession on 1 2.8.2001 from Little Mount to the Marina Beach, Chennai and throughout, the processionists were unruly, violent, provocative and abusive of the Police in general, the Chief Minister of Tamil Nadu and the City Police Commissioner in particular with vulgar slogans in filthy language; that the Police Personnel and journalists were attacked and public and private properties were damaged enroute; that Mr.Mohan, Videographer of "Asian News International" lodged a complaint to the effect that when himself with his Assistant Mr.Kalidas and Reporter Mahalakshmi were covering the procession at Saidapet, a group of processionists attacked them saying that they are from "Jaya TV" and damaged their instruments and a case in J1 Saidapet Police Station in Cr.No.14 08/2001 u/secs.147,148,341,323,324,427 and 506(ii) IPC was registered and investigation was taken-up; that in spite of the unruly behaviour by the DMK party cadres, the police personnel maintained utmost restraint all along the route and when the last part of the procession crossed the office of the Director General of Police, at about 19 hours, the unruly party cadres refused to move and formed themselves into an unlawful assembly and indulged in violent acts of vandalism; that they violently moved towards the office of the Director General of Police with a view to damage the office and harm the police personnel and they were chased away by the police party; that after sometimes, they regrouped with lethal weapons, knives, iron pipes etc. and started attacking the police to enter into the office of the Director General of Police assaulting the police personnel causing grievous injuries to them, even snatching the wireless set from the Inspector Selvaraj besides brutally assaulting the Sub Inspector of Police Mathijohn severing his fingers by aruval, besides setting on fire the motor cycle belonging to the public and the police out-post near Gandhi Statue causing damage to police booths, police vehicles and Central media and in the assault, the general public and the police men on duty were also attacked; that after due warnings, the police tried to disperse the crowd using water canons but in vain and hence the teargas was used to disperse the mob which too became ineffective and hence lathicharge was resorted to, which also did not prove to be effective to prevent further danger to lives and properties of police personnel on duty and the general public and as the last resort, the police opened fire using plastic bullets and dispersed the crowd in which five persons received plastic bullet injuries and many police personnel got injured and admitted in various hospitals; that a case in X-crime No.5 42/2001 u/secs.147,148,323,324, 326,307,335 and 435 r/w.120-B IPC and Sections 2 and 3 of Tamil Nadu Prevention of Public Properties Damages Act was registered and 63 accused were arrested.
7. The further case of the respondents is that in the melee near the office of the Director General of Police, a few journalists were also injured who alleged that they were assaulted by the Police personnel but they did not prefer any written complaint on that day; that the Joint Commissioner of Police (North) Mr.C.Sylendra Babu,IPS was instructed to conduct a personal enquiry and accordingly he sent notices to the injured journalists and others to appear before and give details of the assault so that the persons who assaulted them could be identified and appropriate action taken but they did not appear. However, on 18.8.2001, Selvi B.Jayasree, TV journalist attached to "TV Today" lodged a complaint stating that on 12.8.2001 evening when she went to cover the procession, some unknown policemen assaulted her, snatched her camera and broke it; that on this complaint, a case in Chennai City Crime Branch X-Cr.No.554/2001 was registered u/sec.341,323 and 427 IPC and was taken up for investigation; that further Mr.Pudur Saravanan @ Parthasarathy, photographer attached to `Kumudam' magazine and five others also lodged similar complaints and they are being investigated in the above said crime number since the allegation in their complaints revealed that the alleged incidents took place in the course of the said transaction of the case in CCB X-Cr.No.554/2001.
8. The further averments of the counter affidavit are that condemning arrest of `Sun TV' reporter Mr.Suresh in Villupuram and demanding the withdrawal of case against him and to protect freedom of press, about 150 press persons led by Mr.V.Rangachari assembled on 29.6.2001 FN near State Guest House, Chepauk, Chennai and they were arrested when they attempted to proceed towards the Secretariat in violation of the Regulatory orders in force and they were removed to G1 Vepery Police Station and released in the evening; that following the representation of the office bearers of Madras Union of Journalists to the Honourable Chief Minister on 19.7.2001 to withdraw the cases registered against the journalists and as per the orders of the Honourable Chief Minister, further action in the case was dropped.
9. The counter affidavit would deny that journalists were attacked in order to force them to abandon the coverage in front of the office of the Director General of Police and that it is equally incorrect to state that no proper action was taken on the complaints of journalists; that further complaints of Pudur Saravanan @ Parthasarathy of ` Kumudam' weekly, N.Vivek of `Junior Vikatan', V.Valayapathi and Muthu Ganesh Pandi of `Dina Malar' and Murthy of `The Hindu' and Munish Dhanani of `Zee Telefilm' were subsequently received and are being investigated in the case registered in Chennai City Crime Branch X-Crime No.554/2001; that in the enquiry held by Mr.C.Sylendra Babu,IPS, Joint Commissioner of Police (North Zone), Greater Chennai, though called 13 press persons for enquiry, only Mr.Murthy, Senior Videographer of `The Hindu' appeared and gave statement on 6.9.2001 and none other turned-up; that 112 police personnel who performed their duties on 12 .8.2001 in front of the office of the Director General of Police appeared for an identification parade on 25.9.2001, but none of the press persons turned-up for the identification of the police personnel who are said to have assaulted them on 12.8.2001; that the Madras Union of Journalists, Madras Reporters Guild and Chennai Press Club in their letter dated 25.9.2001 expressed that identification is not necessary and that their members were not willing to participate in the parade; that it is ascertained that some of the press persons who were covering the incidents were beaten-up by the angry crowd and some of them were caught in between when the crowd was being dispersed resorting to lathicharge; that the injured press persons entered the office of the Director General of Police, who were provided with first-aid by senior officers on duty and made arrangements for getting admitted at various hospitals; that it is false and without evidence to allege that the press persons were targeted by police and their cameras were damaged, but it is quite possible that some of the press persons were caught between the violent processionists and police and they might have sustained injuries besides getting their cameras damaged.
10. The counter affidavit would further contend that the Fact Finding Committee of the Press Council of India, which had enquired the media persons and the police officials, sent a report to the Government which found certain objectionable, unwarranted, transgressing terms of the Committee; that the Press Council has travelled beyond its jurisdiction in commenting the Chief Minister in comparing her with the former Chief Minister Mr.M.Karunanidhi forgetting the purpose to enquire into the alleged police excesses against the media persons and hence the said report cannot be relied on.
11. The counter affidavit would also vehemently deny as false the allegation that the police personnel aided by antisocial elements pre-planned the attack in order to frighten the journalists and prevent them from discharging their duties; that in fact the police took the journalists inside the office of the Director General of Police, rendered first aid and sent them to the hospital; that it is not correct to state that journalists will not get a fair investigation in the complaints lodged by them; that the Government have issued orders in G. O.Ms.No.960 Public (Law and Order-F) Department, dated 16.8.2001 for the constitution of a Commission of Inquiry with the Honourable Mr. Justice K.S.Bakthavathsalam, retired Judge of the High Court as the single Member to enquire into the violence erupted during D.M.K. Procession and the alleged attack on the journalists on 12.8.2001 and the said Commission of Enquiry has started functioning, the report of which is awaited and action will be taken based on the Commission's report; that while so, the vague allegations that no fruitful solution will ensure by setting the law on motion particularly in a case for assault on journalists would be denied besides stating that there had been delay in lodging the complaint with the police authorities.
12. The last phase of the counter affidavit would sum-up that the incident of the alleged attack on journalists does not fall under any of the categories of cases that CBI can take-up for investigation which is meant for dealing with cases relating to employees of Central Government/Central Public Undertakings, offences involving the interests of Government of India, important economic offences, breaches of central laws whose enforcement is mainly concerned with Government of India, organised crime or crime by professional criminals having ramifications in several states, cases having inter-state and international ramifications involving several official agencies and the incident of alleged attack on journalists does not fit into any of these categories; that when a case has been registered regarding the incident of alleged attack on journalists which is under investigation, especially when a commission of inquiry has also been appointed, there is absolutely no necessity for an enquiry by the CBI.
13. Ultimately stating that the relief of compensation cannot be considered under Article 226 of the Constitution of India and the writ petitions are not maintainable either in law or on facts, the counter affidavit would seek to dismiss the above writ petitions with costs since being wholly unsustainable in law.
14. In the reply affidavit filed on behalf of the petitioners, besides generally denying the allegations under averments of the counter affidavit, the petitioners would explain the delay in lodging the complaint on 18.8.2001 stating that they were attending on the injured journalists numbering about 12 and for not attending the enquiry held by the Joint Commissioner of Police (North Chennai) in spite of receipt of the notices by some journalists, the petitioners would submit that they did not have faith in the probe being conducted by the police who themselves were involved in the attack on the journalists. Denying the allegations that before the State Guest House that they attempted to violate the regularly orders and march towards the Secretariat, the petitioners would submit that they only attempted to take out a procession to the secretariat in a peaceful manner pertaining to which no case was registered but the Union of Journalists only sought for withdrawal of cases registered against a group of journalists, who staged a spontaneous road-roko agitation on Kamarajar Salai outside the Secretariat on 28.6.2001 when the Chief Minister refused to accept a memorandum seeking the release of Sun TV reporter, sparked off by the high-handed behaviour of the security personnel at the secretariat.
15. Revealing that the report of the Fact Finding Committee constituted by the Press Council of India mentions about a particular TV Correspondent having not been allowed to perform his duties on the date of arrest of Mr.M.Karunanidhi, regarding the assault dated 12.8.2002 at Marina, the petitioners would state that they have video footage to prove that the journalists were attacked by the police besides the acceptance of the Deputy Commissioner of Police Mr.Prabhakaran before the Fact Finding Committee that he had some media persons removed for their own safety from near the CBCID headquarters.
16. Regarding the boycott of the identification parade, the reply affidavit would state that the three journalists organisations came to the conclusion that since the parade and enquiry was to be conducted by an Officer of the TN Police, who are the main suspects in the case, no fair out-come would be possible; that secondly, the day after the attack, the Chief Minister had gone on record saying that the injured media persons were not beaten-up by police, but they were caught between the violent DMK men and the Police and got injured in the melee and hence they did not expect fair enquiry to take place and hence the decision to boycott the identification parade; that instead of providing the first-aid and help for hospitalisation, the police kept them in forced confinement inside the DGP's office for a long time; that the injured reached the hospital on their own accord with the help provided by the professional colleagues and their respective offices.
17. It would further be stated that the Fact Finding Committee constituted by the journalists bodies found evidence in the form of video footage showing the police conniving with anti-social elements to attack the DMK processionists with swords and sticks; that only screening the evidence, the journalists were beaten-up and their cameras were damaged by the police which has been mentioned in the report of the Fact Finding Committee; that as decided by the three journalists organisations, they boycotted the Justice Baktavatsalam Commission.
18. Ultimately submitting that the journalists did not have faith in the commission of enquiry as well as in the investigation conducted by the police and hence they have been demanding a probe by an independent investigation agency and further submitting that in several cases, the Honourable Supreme Court and the High Courts have ordered compensation for the gross violation of the fundamental and legal rights and due to unprovoked attack and the injuries sustained by them, the State is in legal obligation to award compensation to victims, the petitioners would pray for the reliefs extracted supra.
19. During arguments, the learned senior counsel appearing on behalf of the petitioners would submit that all the above writ petitions have been filed by the journalists praying to (1)direct the respondents to register F.I.R. before R.3, to direct R.3 to investigate and prosecute any and every person found to have violated the constitution and the laws by ordering and conducting a savage assault on journalists covering the procession on 12.8.2001 and to direct respondents 1 and 2 to pay compensation to the journalists who suffered injuries to their persons and damage to their properties consequent upon the assault; that there was a change of Government in Tamil Nadu in May, 2001 and the AIADMK party which was installed in the Government, adopting the confrontationist attitude towards the media and the media persons, caused the arrest of a TV reporter on 27.6.2002 for he was covering the activities of an erstwhile Minister of the DMK party and remanded him to judicial custody and at the protest of the journalists, he was forced to be released on bail after a couple of days; that again on 30.6.2001, when the former Chief Minister Mr.Karunanidhi was arrested, because of the obstructive actions of the police and the Government, the journalists could not cover the said incident and while such being the state of affairs prevalent, the subject matter of all the above writ petitions occurred on 12.8.2001 when the DMK party tookout a procession from Little Mount to Marina, the independent journalists were wearing badges with TV and picture cameras and a large number of people were brutally attacked causing injuries on them; that the accused party is the State Government and the Police; that the Press Council of India, a statutory body, sent a Fact Finding Committee and sent the report to the State Government clearly revealing the attack orchestrated on the journalists but the state Government from August, 2001 to June 2002 did not initiate any action nor did it evince any interest in investigating the matters, but on 17.9.2001, the State Government appointed an Enquiry Commission under the Commission of Enquiries Act to inquire into the allegations; that the Enquiry Commission cannot be a substitute for investigation and it could only submit its recommendations which is not binding on anyone; that in the circumstances, a criminal case should be registered and investigated by an independent agency; that the Additional Secretary to Government submits that all the allegations of police excesses are false and at this juncture the learned senior counsel would pose a question that when the first and second respondents have concluded that the allegations of the petitioners are false, how to allow them to investigate into the matter?
20. Resuming the arguments, the learned senior counsel would question that if the Government is not pre-judged, it should have filed a counter in an unbiased and impartial manner but what is alleged in para No.7 of the counter affidavit would be falsified by the averments in Para No.9 of the same counter affidavit wherein it is admitted that "five persons received plastic bullet injuries in this incident. Police personnel were admitted to various hospitals. It is ascertained that some of the press persons who were covering the incidence were beaten-up by the angry crowd and some of them were caught between when the crowd was being dispersed by resort to lathi-charge. The injured press persons entered the office of the DGP and some of whom even scaled over the compound wall of the office of the DGP."
21. Reciting the above paragraph from the counter affidavit, the learned senior counsel would exhort that the Government have already rendered the judgment and what the Commission of Enquiry is going to make? The learned senior counsel would also argue that the Government will not investigate the matter. At this juncture, the learned senior counsel would cite the following judgments:
1.1988 SCC (Cri)864 (KASHMERI DEVI vs. DELHI ADMINISTRATION AND ANOTHER)
2.(1992) 1 SCC 397 (GUDALURE M.J.CHERIAN AND OTHERS vs. UNION OF INDIA AND OTHERS) 3.1994 SCC (Cri)249 (STATE OF U.P. vs. R.S.SODHI AND OTHERS) 4.1995-2-L.W.(Crl.)412 = 1995 Writ.L.R.441 (MADRAS HIGH COURT ADVOCTES' ASSOCIATION REPRESENTED BY ITS HONOURARY SECRETRY vs. STATE OF TAMIL NADU REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HOME DEPARTMENT, FORT St.GEORGE, MADRAS-9 AND 3 OTHERS)
22. So far as the first judgment cited above is concerned, assessing the facts of the case therein, the Honourable Apex Court has observed:
"After hearing learned counsel for the parties and on perusal of the record, we are satisfied that prima facie the police have not acted in a forthright manner in investigating the case, registered on the complaint of Sudesh Kumar. The circumstances available on record prima facie show that effort has been made to protect and shield the guilty officers of the police who are alleged to have perpetrated the barbaric offence of murdering Gopi Ram by beating and torturing. The appellant has been crying hoarse to get the investigation done by an independent authority but none responded to her complaint. The Additional Sessions Judge while considering the bail application of Jagmal Singh, Constable, considered the autopsy report and observed that doctor had postponed giving his opinion regarding the cause of death although the injuries were ante-mortem. The learned sessions Judge referring to a number of circumstances observed that the investigating officer had converted the case from Section 302 IPC to Section 304 IPC on flimsy grounds within hours of the registration of the case even without waiting for the post-mortem report. The learned Sessions Judge further observed that it was a prima facie case of deliberate murder of an innocent illiterate poor citizen of Delhi in police custody and investigation was partisan.
We are in full agreement with the observations made by the learned Sessions Judge. As already noted during the pendency of the writ petition before the High Court and special leave petition before this Court the case was further converted from Section 304 IPC to Section 32 3/34 IPC. Prima facie the police has acted in partisan manner to shield the real culprits and the investigation of the case has not been done in a proper and objective manner. We are therefore of the opinion that in the interest of justice it is necessary to get a fresh investigation made through an independent authority so that truth may be known."
23. So far as the second judgment cited above in (1992) 1 SCC 397 is concerned, it is also one by the Honourable Apex Court in a petition filed under Article 32 of the Constitution of India in the public interest regarding the alleged rape of two Nuns in Utter Pradesh in 1 990 by criminals who broke into the residential quarters of St.Mary' s Convent School and assaulted several other Nuns before decamping with about Rs.1.10 lakhs in cash wherein the investigation of the case was sought to be entrusted to the C.B.I. Transferring the same from the file of the Sessions Judge, Moradabad to Sessions Judge, Delhi. In the said case, tracing the facts and circumstances of the case, the Honourable Apex Court found that three miscreants entered the premises through the kitchen breaking open the window and manhandling the maid servant and snatching her ear-rings and wrist watch, made entry into the bed-room and perpetrated the crime of rape on two other Nuns besides assaulting other Nuns and ransacking the house and looting Rs.1,11,000/= by breaking the almirah. In the above scenario, the Honourable Apex Court, studying the shabby investigation held, would find that the investigation in the case by the police was not fair and the victims were not likely to get justice by the authorities in the State of Uttar Pradesh and in spite of the investigation having been completed by the police and charge-sheet laid, the Honourable Apex Court remarked:
"... it is not for this Court, ordinarily, to reopen the investigation specially by entrusting the same to a specialised agency like CBI. We are also conscious that of late the demand for CBI investigation even in police cases is on the increase. Nevertheless - in a given situation, to do justice between the parties and to instil confidence in the public mind – it may become necessary to ask the CBI to investigate a crime."
The Honourable Apex Court further going into various other circumstances involved in the case, would end up saying `we are of the view that ends of justice would be met if we direct the CBI to hold further investigation in respect of the offences committed' thus transferring the said case from the file of IX Additional Sessions Judge Moradabad and directing the CBI to take-up the investigation of the case immediately thus disposing of the writ petition.
24. The third judgment cited on the part of the learned senior counsel for the petitioners is one reported in 1994 SCC (Crl) 249 wherein in the case of `Pillibbit police encounter deaths' ten persons were reported to have been killed in 1991 - what were described as encounters between the Punjab militants and the local police – and besides handing over investigation to an Officer of the Inspector General of Police in rank, the State Government also appointed a one member Commission headed by a sitting Judge of the Allahabad High Court to inquire into the matter and in some writ petitions filed before the High Court of Allahabad, stay had also been granted restraining the Commission from functioning, the Honourable Apex Court finding that in three instances, as many as ten lives were lost and feeling that an independent agency might be asked to inquire/investigate into the matter in accordance with the Code of Criminal Procedure with a view to bringing the offenders to book and since accusations were directed against the local police personnel, it would be desirable to entrust the investigation to an independent agency like the CBI, so that the concerned may feel assured that would lend the final outcome of the investigation credibility and since the allegations are against the local police, it was thought desirable as well in the interest of justice to entrust the investigation to the CBI forthwith and directions were issued accordingly.
25. In the last judgment cited on behalf of the petitioners, reported in 1995-2-L.W.(Crl.) 412, a learned single Judge of this Court, taking into consideration the points that arose for determination in the said case, viz.:
"(i)Whether it is necessary that the investigation of the crime, which is the subject matter of the writ petition should be handed over to the C.B.I.?
(ii)Whether the first respondent can be asked to pay compensation in the circumstances of the case?
(iii)Whether the interim direction, directing the first respondent to bear the medical expenses of the victim Mr.R.Shanmugasundaram can be ordered?"
and relying on various judgments of the Honourable Apex Court, including the above cited judgment reported in (1992) 1 SCC 397, has concluded as follows:
"Following the above said principles, I am of the view that without any disregard to the State Police, I direct the investigation in crime No.895/95 on the file of the third respondent Inspector of Police, G.3 Kilpauk Police Station be entrusted to the C.B.I., the fourth respondent herein for the purpose of investigation. The C.B.I. is directed to complete the investigation and file the report within four months from today. The first respondent herein is directed to extend all help and cooperation to the fourth respondent C.B.I. in completing the investigation."
Citing the above judgments, the learned senior counsel would end up his arguments with the note that in these circumstances, the investigation of the subject matter by the first and second respondents is meaningless and on the principles laid down by the Honourable Supreme Court and many of the High Courts particularly this Court, it is only just and proper to transfer the case to an independent agency like CBI for investigation.
26. In reply, the learned Advocate General of Tamil Nadu appearing on behalf of the first and second respondents, besides advancing his oral arguments, would also make written submissions, the sum and substance of which is that when the complaint was received against the police personnel, immediate action was taken by Joint Commissioner, against whom no mala fide is attributed, who was instructed to conduct a personal enquiry and accordingly he sent notices to the injured journalists and others to appear before him and furnish the details so that the persons who assaulted the journalists would be identified and appropriate action initiated, but they did not choose to appear before the said Officer for an enquiry; that on a complaint received on 1`8.8.2001 from Selvi B.Jayashree, attached to "T.V.Today", a case in Chennai City Crime Branch X-Cr.No.554/2001 under Sections 341,323 and 427 of the IPC was registered and taken-up for investigation; that similarly, Pudur Saravanan @ Parthasarathy photographer of `Kumudam' magazine and five others lodged similar complaints and they have also been investigated in the same crime number since they were alleged to have taken place in the course of the same transaction.
27. The learned Advocate General would further submit that when the 13 persons who are alleged to have been assaulted were called, they refused to participate in the identification parade wherein all the 1 12 police personnel who performed the duty on 12.8.2001 were made available for identification; that the reason given by the petitioners for non-participation in the reply stating that the identification parade was unnecessary since the same was available in video and clipping could not be the answer; that it is not their case that the video and the other materials have been handed over to the investigation by the police officials; that the statement of Mr.Muthukaruppan, the then Commissioner of Police, Chennai city, referred to in the written submission that boys turning criminals in uniforms is not a ground to hold that all the 112 police personnel were involved in the incident; that it is relevant to point out that investigation was carried out and statements were recorded but they did not identify the assailants; that it is not the case of the journalists that all the police personnel exceeded their limits and hence the identification parade became necessary; that all the opportunities given to the complainants were not availed in spite of the senior officer entertaining the complaint, requested the cooperation of the journalists and hence the suspicion that is created has no basis at all.
28. The learned Advocate General would then focus his attention on the two reports viz. the report of the Fact Finding Committee and by the Press Council and would argue that the petitioners cannot rely on the report of the Fact Finding Committee based on the statements made by certain journalists whose statements were not subjected to cross-examination; that the statements were recorded even prior to the constitution of the Committee by the Press Council and parties were not given opportunity to cross-examine the parties who made the statements and hence the said statement cannot be relied upon especially in view of the further fact that some of the petitioners themselves are members of the Fact Finding Committee.
29. The learned Advocate General would then submit that the Committee constituted by the Press Council is not a statutory committee; that the fact that the Committee constituted under Section 8 of the Press Council Act is only to perform the functions under the Act which cannot be misconstrued to go into the incident that occurred on a particular day; that no valid reasons have been assigned by the journalists for not participating in the commission which would alone establish the correct fact based on which the State could proceed in accordance with law; that the commission headed by a retired Judge of the Madras High Court can independently decide the issue bringing out the truth with full opportunity for all parties concerned; that the petitioners misleading the averments of the counter affidavit pleaded that the Government have already decided the matter and hence there is no purpose in the investigation by the State Police; that for the allegation that no arrest has been made by the police and there had been a lack of progress in the case registered, the learned Advocate General would attribute the same for non-cooperation on the part of the complainants and the journalists with the investigation particularly in the identification of the police officials who are alleged to have assaulted them; that the investigation proceeded in accordance with the provisions of the Cr.P.C.; that the statements of the five journalists recorded under Section 161(3) of Cr.P.C. would show that they merely stated that they were assaulted by the police without identification of the particular police personnel and hence no arrest would be caused; that the journalists did not appear for enquiry called on 14.8.20 01, 23.8.2001, 4.9.2001 and did not attend to the identification parade held on 25.9.2001 and hence there is no progress; that the reasoning to transfer the investigation on the ground of lack of progress is not a ground to transfer the case to the CBI; that moreover, the Commission has seized of the matter, the State will certainly take action on the basis of the report, if any erring police official is implicated in the case. At this juncture, the learned Advocate General would also appeal to the petitioners to place the materials available with them viz. the video and the clippings before the Commission to establish the case particularly, when it is admitted by the petitioner that such materials are available with them and assist the Commission for effective enquiry and report.
30. Dealing with the position of law on the subject, the learned Advocate General would submit that the ratio laid down in 1995 Writ L. R. 441 to the effect that `the court must come to the conclusion on the facts of the case that the State police are not in the position to discharge function freely in unbiased manner' is against the petitioners; that on the other hand, the decision relied upon by the State in SECRETARY, MINOR IRRIGATION & RURAL ENGINEERING SERVICES, U.P. AND OTHERS vs. SAHNGOO RAM ARYA AND ANOTHER reported in 2002 (2) CTC 610 lays down the correct parameter and crystalises the correct principles, when investigation can be transferred to CBI; that the distinction sought to be made by the counsel for the petitioners that the said decision will not apply because it does not relate to a Police Officer, but to a Minister is totally untenable; that the principles laid down in the said decision will apply in all fours since it is a law declared under Article 141 of the Constitution; that it is relevant to note that in (1989) 2 SCC 314, where complaint was made against a police personnel during certain encounters, the Supreme Court dismissed the said petition holding that the State should be given an opportunity at the first instance before accusing the police officials.
31. The learned Advocate General would conclude his arguments with the note that the legal position in the prayer column is misconceived and the contention of the petitioner is only a presumption and suspicion; that the Government will act on the basis of the report of the enquiry commission and hence at this juncture, the reliefs cannot be considered as prayed for in the petition. On such arguments, the learned Advocate General would ultimately pray to dismiss all the above writ petitions.
32. Besides these, two third party supporting affidavits would also be filed, one on behalf of the Chennai Press Club and the other on behalf of the Madras Union of Journalists – the first one sworn by Mr.A.Ilango, son of T.Arumugam, acting as the General Secretary of the Chennai Press Club and the second one by S.M.Balasubramaniam, Son of Muthu, General Secretary of the Madras Union of Journalists. It is not only that the recitals of both the supporting affidavits are same or similar but also they bear the same points brought forth in the writ petition and therefore extracting the contents of these supporting affidavits would only be a repetition of the averments of the writ petition and a time consuming affair and hence they are not extracted herein.
33. In consideration of the facts pleaded, having regard to the materials placed on record, keeping in tune with the legality on the subject and upon hearing the learned counsel for both, it could be put in a nutshell that the petitioners, numbering nine, admittedly, journalists, have come forward to file the above three writ petitions against the first respondent, Government of Tamil Nadu, and its Director General of Police praying to (i)direct them to register the F.I.R. before the third respondent, Regional Director, C.B.I., Chennai relating to the incidence that occurred at Marina, Chennai on 12.8.2001, (ii)to direct the third respondent to investigate and prosecute those who have violated the Constitution and the Laws ordering and conducting a savage assault on journalists covering procession on 12.8.2001 and (iii)to direct the respondents 1 and 2 to pay compensation to the journalists who suffered injuries to their persons and damage to their properties, consequent upon the assault on 12.8.2001.
34. The petitioners would allege that while they were covering the procession organised by a political party on 12.8.2001, for no apparent reason, but evidently to intimidate and frighten and force them to abandon the coverage of procession, the Police Officers and their men and women directed and conducted the indiscriminate assault in an orchestrated manner which the petitioners would attribute to the two earlier incidents serving as motives, the first one on 27.6.2001 when a T.V. Reporter was arrested and remanded to custody for covering the activities of a DMK leader at Villupuram and the second incident on 30.6.2001 when the former Chief Minister of Tamil Nadu Mr. Karunanidhi was arrested and remanded to judicial custody. In the first incident above, it is alleged that the arrested reporter was `forced to be bailed out' wherein there is no denying of the fact that a specific case was registered against the Reporter, the fate of which is not known. So far as the second incident regarding the arrest of Mr. Karunanidhi on 30.6.2001 is concerned, it is alleged that the journalists could not cover the incident because of obstruction caused by the Police. According to the petitioners, these are the two incidents which serve as the motive for the Tamil Nadu police and the Government to act against the journalists on 12.8.2001 so as to launch the alleged `savage attack' on the petitioner journalists.
35. In the first incident cited above, dated 27.6.2001, a T.V. Reporter who was said to be covering the acts of a DMK leader at Villupuram had been arrested on a specific complaint and remanded to judicial custody who is alleged to have been `forced to be bailed out' on pressure exercised on the part of the journalists forum. Admittedly, a definite case had been registered against the T.V. Reporter, the subject matter of which being sub judice, it is undesirable to travel into the causes leading to the arrest and remand of the T.V.Reporter which is a legal act and his release on bail by the Magistrate concerned is a judicial decision. However, since being an isolated legal action instituted against an independent T.V. Reporter for the alleged commission of specific criminal act which was considered by the authorities either wrong or contrary to law, this Court is unable to find any ethical standard attached in the petitioners coming forward to allege that the said TV Reporter was `forced to be bailed out'. Suffice it to mention that this incident would have had little or nil effect or impact serving as the motive for the alleged attack on the journalists by the police in the incident dated 12.8.2001.
36. The second incident alleged to have been served as the motive for the Tamil Nadu Government and the Tamil Nadu State Police men and women to turn hostile or to have nurtured a grudge against the journalists so as to unleash violence in a deliberate and orchestrated manner on 12.8.2001, is that on 30.6.2001 when the former Chief Minister Mr.Karunanidhi was arrested on a case registered for charges of corruption and remanded to custody, the journalists are said to have been obstructed by the police and the Government from covering the said incident truthfully and comprehensively. In this incidence, the aggrieved party is undoubtedly the journalists and either the Tamil Nadu Police or the Government having not been in any manner aggrieved of the said incident, during the arrest of Mr.Karunanidhi on 30.6.2001, this Court is unable to see any reason for the said incident serving as a motive for the latter incident which is the subject matter of the writ petition i.e. the assault alleged to have been unleashed against the journalists on 12.8.2001. Therefore, at this stage, it is safe to conclude that the case of the petitioners, citing these two incidents serving as motive to the main incident alleged in the above writ petitions dated 12.8.2001, has failed to impress that the Tamil Nadu Police as a whole and the State Government have become prejudiced against the journalists group to cause the `deliberate and preplanned assault in order to frighten the journalists and prevent them from discharging their duties', which appears to be a farce and a farfetched idea.
37. Again coming to the same accusation that the attack was deliberate and pre-planned on the part of the State Police personnel and the Government actively aided by certain anti-social elements as it is alleged to have been termed by the Fact Finding Committee in its report, there should have been the element of `conspiracy' which is a blazing inevitability in such circumstances. There is not even an allegation to the effect that there had been any conspiracy beforehand by the authorities of the Government and the Police Department, much less, in connivance with the anti-social elements so as to launch the ' pre-planned assault in order to frighten the journalists and prevent them from discharging their duties and obliterate the first-hand evidence' which appears to be a vain attempt made on the part of the Fact Finding Committee in stuffing a frog to appear as a buffalo. In all fours, it is only desirable to conclude, based on the materials made available, that the accusation of the petitioners that the incident dated 12.8.2001 in which the journalists are alleged to have been attacked was pre-planned and projected by the State Police personnel and the Government, is bereft of any proof or authority, particularly on account of the missing of the element of conspiracy in the pleadings.
38. Coming to the actual occurrence said to have taken place on 12 .8.2001 in front of the Office of the Director General of Police, adjacent to Marina in which admittedly the petitioners and some other journalists got injured, what would be termed on the part of the petitioners as a deliberate attack orchestrated by the Police and State Government actively assisted by the anti-social elements, but assailed by the respondents 1 and 2 on ground that it became inevitable in the melee wherein the processionists and anti-social elements attempted to make their way into the DGP's office, obviously to endanger the lives of the police personnel and the properties of the very office, on the part of the petitioners, they would come forward to allege that they were obstructed from covering the unruly scene that took place near the DGP's office when the procession was passing that way to reach the Marina Beach, thereby admitting that there had been a law and order problem created by the processionists and also there is no denying of the fact that to disperse the u nruly mob unleashing violence at the spot and to contain the situation, the police used the tear gas shells and since the wind was unfavourable, it started affecting the police personnel themselves and hence the Police used the water canons followed by lathi-charge and ultimately firing the plastic bullets thus only in the last action resorting to fire with the plastic bullets the situation had been brought under control. There is also no denying of the fact that the police vehicles and the vehicles belonging to the general public parked therein were set ablaze and destroyed and also there is no denying of the fact that the camera of one of the journalists got damaged besides causing injuries to their person which are susceptible to occur when the processionists turned violent.
39. None of these events which took place at the scene of occurrence finds place in the writ petitions regarding which the answer is only silence. However, it could be presumed that the petitioners and other media persons were only engaged in covering the scene when the incident, wherein they are said to have sustained injuries, had occurred. On the part of the respondents 1 and 2, they would come forward to allege that when the police personnel were managing to bring the situation under control, the petitioners and such others were caught in between the rioters and the police and the injuries caused to them in the melee became inevitable. However, the petitioners would come forward to claim that they have got video clippings and photographs to establish the police atrocities unleashed on them in an orchestrated manner, but they would not submit the same nor would they lodge a complaint in time before the proper authority particularly the concerned police, and it is unfortunate that in spite of the Joint Commissioner of Police, Madras North, Greater Chennai, a senior IPS Officer, having been directed to enquire into the incident by the higher-ups, not a single journalist turned up even to lodge a complaint in time and after a lapse of six days, on 18.6.2001, one Ms.B.Jeyashree of ` TV Today' had lodged a complaint based on which a case in Chennai City Crime Branch X-Cr.No.554/2001 had been registered and since six more journalists also lodged complaints thereafter, they were also taken on file for investigation in the same crime number since all of them arose from out of one and the same cause of action and in the course of the same transaction.
40. While such being the state of affairs, on the part of the petitioners, they would come forward to say that since their very case was against the police of Tamil Nadu, represented by the second respondent herein, there was no point in lodging the complaint to themselves at whose hands they would not get justice and having waited all these days, without lodging the very complaint before the appropriate authorities, they would straight away come before this Court seeking the reliefs extracted supra. On the part of the Government, the first respondent herein, besides having directed the Joint Commissioner, Chennai North, as aforeseen to get at the truth probing into the same on complaints received, without loss of time, it would also constitute an Enquiry Commission as per the provisions of the Commissions of Inquiry Act, 1952 passing G.O.Ms.No.960, Public (Law and Order-F) Department, dated 16.8.2001 thus constituting the Commission of Enquiry with Justice K.S.Bakthavathsalam, a retired High Court Judge, as the single Member with reference (a)to inquire into the incidents of violence and the causes thereof and the circumstances that necessitated the use of force by the police, (b) whether the force used by the police was the minimum required and on justifiable grounds (c)to inquire into the causes and circumstances leading to the casualties and sustaining of injuries by the public, police personnel and media persons in the incidence on 12th August, 2001 during the procession taken out by the DMK partymen at Chennai and (d)to suggest norms and guidelines to be followed by the media persons who cover processions and demonstrations in order to ensure their protection including the safe distance to be maintained by them' etc., thereby granting a specific time of three months for the Commission to complete its enquiry and submit its report to the State Government.
41. But, on the part of the petitioners, they would allege that the said Commission of Inquiry constituted by the State Government as per the provisions of the Commissions of Inquiry Act, 1952, can hardly do any justice to the affected parties stating that it cannot enforce the Constitution or the Laws of the land or punish the respondents 1 and 2 if they are found to have violated the Constitution and of the Laws and it is rather a tactic of the State Government to postpone and dilute the grievance of the petitioners and that no fruitful solution would ensure setting the law on motion after a long delay. It would further be alleged that the Fact Finding Committee appointed by the Press Council of India submitted its report to his Excellency The Governor and the Chief Secretary of The Government of Tamil Nadu as on 8.9.2001, but no action has been taken till date and hence the petitioners would lay emphasis that an impartial enquiry, investigation and prosecution, particularly by CBI, is an absolute necessity in this case.
42. The respondents 1 and 2 would assail the report of the Fact Finding Committee by the Press Council of India, which is said to have inquired the media persons and the police officials on ground that the said report, submitted to the Government, contains certain objectionable and transgressing terms of the Committee, travelling beyond its jurisdiction in commenting the Chief Minister and comparing her with the former Chief Minister Mr.M.Karunanidhi forgetting the purpose to go into the alleged police excesses against the media persons and hence the said report cannot be relied on.
43. In the above circumstances, it has become necessary on the part of this Court to go into the essentiality of the constitution of the Commission by the first respondent Government with directions extracted supra.
44. So far as the Press Council Act, 1978 and the Commissions of Inquiry Act, 1952 are concerned, they are vital for discussion in the cases in hand since on the part of the petitioners, they would rely upon the Fact Finding Committee constituted under Section 8 by the Press Council of India from among its members for the purpose of conducting an inquiry into the alleged incident dated 12.8.2001 and the report submitted by the said Committee. The grievance of the petitioners is that the said report in spite of having been submitted before His Excellency the Governor and the Chief Secretary of the Government of Tamil Nadu, no action is initiated in acco rdance with the recommendations of the Committee in the said report.
45. On the part of the Government, the first respondent herein, it would be very strongly argued on grounds (a)that the petitioners cannot rely on the report of the Fact Finding Committee based on the statements made by some journalists, which were not subjected to crossexamination; (b) that the statements were recorded even prior to the constitution of the Committee by the Press Council and parties were not given due opportunity to cross-examine the witnesses and hence those statements cannot be relied upon nor the report prepared by the said Fact Finding Committee could be acceptable and (c) that the said Fact Finding Committee constituted by the Press Council is not a statutory Committee since the said Committee constituted under section 8 of the Press Council Act is only to perform certain functions under the Act, which cannot be misconstrued that it could go into the incident that occurred on a particular day.
46. On the contrary, the Commission constituted by the first respondent Government of Tamil Nadu under the Commissions of Inquiry Act, 1 952, is vested with powers to make inquiry into matters relatable to any of the entries enumerated in Lists II and III in VII Schedule to the Constitution since it is a Commission appointed by the State Government; that the legislative competence of this Act has been tested and tried and concluded that Parliament has certainly got legislative competence to enact the Act and its provisions have been held to be a valid, in exercise of the legislative competence of the Parliament; that it is further indicated that the scope of enquiry is not necessarily limited to the particular or specific matters enumerated in any of the entries in the List concerned but may extend to enquiries into collateral matters which may be necessary for the purpose of legislation.
47. Coming to the vital and most important question which is concerned with W.P.Nos.21120 and 21121 of 2002 praying to direct the respondents No.1 and 2 to register F.I.R. before the third respondent relating to the incidents that took place on 12.8.2001 at the Marina, Chennai and further to direct the third respondent to investigate and prosecute any person found to have violated the Constitution and the Laws ordering and conducting a savage attack on journalists covering the procession on the said date, it is necessary not only to go into the facts and circumstances that we have discussed in the foregoing paragraphs but also the legal propositions as held by the Honourable Apex Court and this Court through the decided cases.
48. On the part of the petitioners in the above writ petitions, four judgments would be cited as extracted in para No.21 supra. In the first judgment reported in 1988 SCC (Cri) 864, there had been a complaint lodged by one Sudesh Kumar with the police, but the police were found to have not acted in a forthright manner in investigating the case. Moreover, in the said case, the accused police officials are alleged to have perpetrated the barbaric offence of murdering one Gopi Ram by beating and torturing. It could also be seen from this judgment that in the said case, the complainant `has been crying hoarse to get the investigation done by an independent authority' and further in spite of the cause of death having found to be due to injuries caused ante-mortem, the Investigating Officer had deliberately altered Section 302 IPC to Section 304 IPC on flimsy grounds within hours of the registration of the case, even without waiting for the Post Mortem Report and ultimately even the Section 304 IPC had been altered to Section 323 r/w.34 IPC and in these circumstances, the Honourable Apex Court arriving at the firm conclusion that the police have acted in a partisan manner to conceal the real culprits and that the investigation had not been done in a proper and objective manner, had decided to entrust the investigation to be held by an independent authority in the interest of justice.
49. None of the above circumstances involved in the above case could be compared with the cases in hand wherein there was not even a complaint lodged. At the outset, it is not an orchestrated murder, but a case of injury and damage to the properties of the journalists when the police were involved in dealing with the riotous and furious mob, making all possible efforts to bring the situation under control without allowing the same to disastrous consequences. Further more since prima facie the petitioners could not place valid materials to show that the situation was planned and orchestrated, there is no basis for the thinking that the police personnel anticipated such a rioting to occur at the DGP's office near the Marina and further in anticipation that the petitioners would assemble there to cover up such an encounter by the police with the riotous mob so as to inflict injuries on the journalists and cause damage to the cameras and other articles, which are far-fetched. None of the petitioners nor any other injured journalists ventured to lodge even a complaint before the concerned authorities as it had been done in the case cited nor even in the Press Council's report had there been any request made for entrustment of the investigation to an independent agency, much less, the CBI. Absolutely, no opportunity was given to the respondents either to set the law on motion or to investigate the cases of the petitioners so as to accuse them of having not acted in accordance with law, the rules and procedures established thereunder and without even such opportunity afforded, the fidelity of the respondents cannot be doubted saying that they would not be fair as though they are tried and found on the wrong and therefore the proposition held by the Honourable Apex Court to the facts and circumstances of the case cited above, has no applicability to the cases in hand.
50. In the second judgment cited by the petitioners, reported in (1 992) 1 SCC 397, dealing with the case of the alleged rape of two nuns by criminals who broke into the residential quarters of the convent School and assaulted several other nuns before decamping with about Rs.1,10,000/= in cash wherein the investigation of the case was sought to be entrusted to the CBI transferring the same from the file of the Sessions Judge, Muradabad to the Sessions Judge, Delhi, the Honourable Apex Court, having gone into the shabby investigation held, while discrediting the tendency seeking to entrust the investigation to a specialised agency like the CBI, has remarked that `we are also conscious that of late, the demand for CBI investigation even in police cases is on the increase'. Further going into various facts situation of the case and the special circumstances involved, the Honourable Supreme Court having become convinced that it was not safe to allow the U.P. police to investigate into the case, ordered transferring the same from the file of the Sessions Judge, Moradabad to the Sessions Judge, Delhi further directing the CBI to hold further investigation. Having regard to the gravity of the offence complained of and the manner in which the investigation had been held by the U.P. State Police, the Honourable Apex Court, fearing that proper justice would not be rendered if the U.P.Police were allowed to carry on the investigation, had ordered in the manner aforementioned. The facts and circumstances of the case dealt with by the Apex Court, the grave nature of offence and the shabby investigation held by the U.P. Police handling the case, have culminated in the Honourable Apex Court arriving at such a conclusion to transfer further investigation to the CBI which are lacking in the cases in hand and therefore it has to be held that this judgment also cannot be held to be supporting the case of the petitioners.
51. So far as the third judgment cited on the part of the petitioners reported in 1994 SCC (Cri) 249 is concerned, it is a case of encounter between the Punjab Militants and the local police in which ten persons were killed within the Pillibbit Police limits and in such situation, the Honourable Apex Court realising the grave nature of the offence in three incidents resulting in ten deaths and since the accusations were also directed against the local police personnel, thought it fit to entrust the investigation to an independent agency like the CBI besides staying the one Member Commission appointed by the state Government. Those facts and circumstances and the grave nature of offence cannot be equated with the facts alleged in the cases in hand and hence there is no place for the application of the norms held in the said decision to the allegations brought forth in the above writ petitions so as to apply the same norms to the facts of the cases in hand.
52. The last judgment cited on the part of the petitioners reported in 1995(2)L.W.(Crl) 412 is one rendered by a learned single Judge of this Court. It is a case of a gruesome attack, well orchestrated by the miscreants against a practicing Advocate of this High Court in which reportedly the involvement of a Minister of the State Government and his relatives came to be strongly reported against from various sections and the learned single Judge, though discredited the transfer of cases to other agency such as the CBI remarking that `normally this Court should not interfere with the investigation of the crime and the progress made by the investigating agency of the State as well settled by the principles laid down by this Court and the Apex Court', still, in consideration of the extraordinary circumstances which prevailed on accusation against the State Minister and his relatives along with two other culprits, without any disregard to the State Police, had directed the investigation of the case to be entrusted to the CBI for the purpose of investigation. Since in the cases in hand, no such specific complaint is made against the accused who were specified in a crime well orchestrated and accomplished as in the assault of a practicing Advocate coupled with the allegation of involvement of a serving Minister of the State and his relatives, the decision taken by the learned single Judge in the above case cited, since purely based on the facts and circumstances of that particular case, the ratio on which the decision was made to transfer the investigation becomes inapplicable to the cases in hand wherein the facts are entirely different. It is only the principles laid down by this Court and the Honourable Apex Court that `normally the Court should not interfere in the investigation of the crime as well as the progress made by the investigating agency of the State' only weighs heavily for acceptance and application and not the exceptional circumstance which is necessary to deviate from the general principle which is lacking in the cases in hand.
53. On the contrary, the ratio laid down in the case reported in 19 95(2)L.W.(Crl)412 = 1995 Writ L.R.441 to the effect that the `Court must come to the conclusion on the facts of the case that the State Police are not in a position to discharge their functions freely and in an unbiased manner' cannot at all be applied to the cases of the petitioners since no such impediment either exists or has been caused to the State Police to freely investigate into any such occurrence as it is projected by the petitioners and it could very well be handled by the investigative agency available with the State Government itself and therefore question of transfer of the investigation by any other independent agency much less the C.B.I. does not arise at all in the cases in hand.
54. In the second judgment cited on the part of the Government reported in 2002(2)CTC 610 it has been held that `the High Court has power under Article 226 to direct an enquiry and investigation by CBI, but such power can be exercised only in cases where there is sufficient material in the pleading to come to prima facie conclusion regarding need for such enquiry .... CBI investigation cannot be ordered as a matter of routine simply because some allegations have been made'. On such observations, in the said case, the order of the High Court directing CBI investigation was set aside further remanding the matter to the High Court to consider prima facie case and to decide whether CBI investigation was wanted in the circumstances of the case. It could further be noted that in the case reported in (1989)2 SCC 314, where complaint was lodged against a police personnel during certain encounters, the Honourable Supreme Court dismissed the said petition holding that `the State should be given an opportunity at the first instance before accusing the police officials'.
55. For all the above discussions held, it could be safely concluded that just for the simple reason that Section 8 of the Press Council Act, 1978 enables the Council to constitute a Committee to inquire into certain incidents on the complaints received by it and to submit a report, it cannot be concluded that such report has any statutory force or value. It is upto the Government and the authorities to decide whether to accept the report or implement the recommendations thereon. Under no circumstances, such a report could be either compared or placed against a statutorily constituted Commission to inquire into the same allegations or incidents that occurred which is a statutory body constituted under the Commissions of Inquiry Act, 1952 on such subjects enumerated under Lists II and III of the VII Schedule to the Constitution, so far as it is concerned with the powers of the State Governments to constitute such Commissions and therefore the constitution of the Commission with Justice K.S.Bakthavathsalam, a retired High Court Judge, as a single member, by the Government of Tamil Nadu to inquire into the affairs connected to the incidents that have taken place on 12.8.2001 is not only appropriate and legal but also timely and necessary in the circumstances of the case, which could at the best be the answer to provide opportunities for all to have a fair and free enquiry and to arrive at valid conclusions besides suggesting norms and guidelines to be followed by the media persons who cover processions and demonstrations, in order to ensure their protection including the safe distance to be maintained by them etc. which could be the only and the best course open for the Government in the circumstances of the case, which the Government of Tamil Nadu has perfectly done.
56. So far as the constitution of the Commission to inquire into the incidents that took place on 12.8.2001 is concerned, it would be assailed on the part of the petitioners alleging that it is rather a dilatory tactic adopted by the State Government to postpone and dilute the grievance of the petitioners which need to be redressed expeditiously and therefore they would seek for the registration of the FIR before the third respondent/CBI and to direct the said respondent to investigate and prosecute such persons who are found to have violated the Constitution and the laws as it has been prayed for in the first and second writ petitions above by the petitioners.
57. At this juncture, it is relevant to remark that the petitioners have not even come forward to challenge or testify the validity of the G.O. passed by the Government in G.O.Ms.No.960 Public (Law and Order-F), dated 16.8.2001 by which the Government of Tamil Nadu decided to appoint a Commission of Inquiry to inquire into the incidents of violence dated 12.8.2001 and consequently issued the notification appointing the Commission of Inquiry with such terms and reference and hence it could be easily held that the relevance of the appointment of the Commission of Inquiry by the State Government stands unchallenged and this Court is able to see no valid or tangible reason to cause any interference into the appointment and functioning of the Commission of Inquiry constituted with Justice K.S.Bakthavathsalam, a retired Judge of the High Court, as its single member.
58. However, though it is glaring in the G.O. and notification that the Commission was initially required to complete its inquiry and submit its report to the State Government within a period of three months from the date of publication of the said notification that was on 16.8.2001, in spite of a lapse of one year, the Commission has not submitted its report and therefore this Court hastens to add that it would be appropriate to order directing the said Commission of inquiry constituted under G.O.Ms.No.960 Public (Law and Order-F) dated 16.8 .2001 to complete the inquiry procedures and submit the report to the Government of Tamil Nadu within thirty days from the date of receipt of a copy of this order and the same is ordered accordingly.
59. It is further decided that directing the first and second respondents to register the FIR with the third respondent and direct the third respondent to investigate and prosecute into the incidents that occurred on 12.8.2001 at Marina, Chennai, as it has been prayed for in W.P.Nos.21120 and 21121 of 2001, is neither necessary nor warranted in the circumstances of the case and the same is decided accordingly.
60. Coming to the prayer of the third writ petition in W.P.No.21122 of 2001, this writ petition has been filed to direct the respondents 1 and 2 to pay compensation to the journalists who suffered injuries to their persons and damage to their properties consequent upon the assault on 12.8.2001. So far as this writ petition is concerned, there is absolutely no denying of the fact on the part of the respondents 1 and 2 regarding the incident dated 12.8.2001 and the injuries sustained by the petitioners and some other journalists in the said incident that took place near the DGP's office at Marina, though parties may differ the manner in which the incident had occurred in which the petitioner journalists and some others are said to have been assaulted resulting in simple and grievous injuries sustained by the petitioners and other journalists besides loss or damage to their cameras and such other equipments handled by them and therefore no doubt need be entertained that the petitioners must be compensated adequately. Even though it comes to be seen from the materials made available that some compensation to some journalists have been made on the part of the Government of Tamil Nadu, it should be borne in mind that the compensation should not be meant 'some or mere compensation' for the name sake but 'adequate compensation' to the extent the injury or damage has been caused to the person or the property of the petitioners in full consideration of the claims made by the individual petitioners based on such evidence placed before the first respondent Government and if any of these petitioners is aggrieved on ground of inadequate compensation, he/she is always at liberty to file such applications in the manner known to law before this Court on such failure by the first respondent to consider their claims in full and in the proper manner depending upon the facts and circumstances of the case of each of the petitioners.
In result,
(i) W.P.Nos.21120 and 21121 of 2001 are dismissed as devoid of merits.
(ii) W.P.No.21122 of 2001 is allowed to the extent indicated in the foregoing paragraphs relevant to this writ petition.
However, in the circumstances of the cases, there shall be no order as to costs.
Consequently, W.M.P.No.31222 of 2001 is closed.
Index: Yes Internet: Yes Rao To
1.The Secretary to Government of Tamil Nadu, Home Deprtment, Fort St.George, Chennai-9.
2.The Director General of Police, Kamaraj Salai, Chennai.
3.The Regional Director, Central Bureau of Investigation, Rajaji Bhavan, Besant Nagar, Chennai.