Madras High Court
K.Dhamodharan vs R.V.Narbabi on 10 November, 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10/11/2006 CORAM: THE HONOURABLE MR.JUSTICE M.JEYAPAUL CRL.O.P.(MD).No.4529 of 2006 and M.P.(MD).Nos.1 and 2 of 2006 K.Dhamodharan ... Petitioner Vs. R.V.Narbabi ... Respondent Prayer Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, praying to call for the records relating to P.R.C.No.38 of 2005 on the file of the learned Judicial Magistrate No.I, Thanjavur, quash the same. !For Petitioner ... Mr.S.Nagamuthu ^For Respondent ... Mr.K.Thirumalairaj :ORDER
The petition is filed seeking quashment of the criminal proceedings in P.R.C.No.38 of 2005 on the file of the learned Judicial Magistrate No.I, Thanjavur.
2. The respondent/complainant preferred a complaint before the Court of the Chief Judicial Magistrate, Kumbakonam, which was formerly the Human Rights Court, under Section 2 (d) of the Protection of Human Rights Act r/w Section 200 of the Code of Criminal Procedure. Thereafter, the entire records in the case was sent to the Court of the Principal District Judge, Thanjavur which was notified as the Human Rights Court in the District of Thanjavur. The latter chose to send the entire case records to the Judicial Magistrate No.I, Thanjavur to adhere to the committal proceedings, as the Human Rights Court was not vested with the power to take up the private complaint directly on file without committal proceedings.
3. The sum and substance of the complaint is that the petitioner/accused herein, who was serving as Station House Officer at Thanjavur Town East Police Station, entertained a false complaint given by one Ashokkumar in connection with the introduction of one Sethu Ramachandran by the complainant to the said Ashokkumar and in the guise of such a complaint preferred by Ashokkumar, the complainant was forcibly taken by the accused to the police station on 19.04.2003. The accused and his subordinates tortured the complainant to give a cheque and put his signature in stamp papers. The complainant was not given even food by the accused. The accused tortured and harassed the complainant for eight long hours on 19.04.2003 in order to obtain a cheque and his signature in stamped papers. The accused let off the complainant only in the evening of 19.04.2003 after forcibly obtaining his signature in two stamp papers dated 28.03.2003. The accused violated the fundamental rights of the complainant in keeping him in illegal custody. Further, the accused committed custodial violence by torturing and harassing the complainant on 19.04.2003.
4. With the above allegation, the complainant has sought criminal action as against the accused for an offence under Section 2(d) of the Protection of Human Rights Act, 1993 and also compensation of Rs.1,00,000/- for the torture and harassment meted out to the complainant.
5. As the committal proceedings are in progress, the present petition has been filed by the accused seeking quashment of the whole proceedings in P.R.C.No.38 of 2005 on the file of the learned Judicial Magistrate No.I, Thanajavur.
6. The learned counsel for the petitioner/accused would vehemently submit that any complaint regarding the violation of human rights shall be submitted only before the State Commission constituted under the Protection of Human Rights Act, 1993. No private complaint would lie as against the public servant. The protection given under the Human Rights Act for the public servant will be in peril, if such a private complaint is entertained by the Judicial Magistrate. The private complaint filed by the complainant has no sanction of law. He would further contend that the entire gamut of facts and circumstances spoken to by the complainant in the private complaint does not reflect violation of any human rights. On that score also the complainant cannot prosecute the Inspector of Police, who was just performed his duty on receipt of complaint against the complainant. Therefore, the whole proceedings which culminated in P.R.C.No.38 of 2005 on the file of the learned Judicial Magistrate No.I, Thanjavur may be quashed, he would lastly submit.
7. The learned counsel for the respondent/complainant would contend that the Human Rights Commission constituted under the Human Rights Act, of course, has the power to enquire into the violations of human rights alleged against a public servant on the basis of the complaint given by an aggrieved person. But the plenary power of the criminal Courts to entertain the complaint alleging commission of criminal offence has not been taken away by the Protection of Human Rights Act, 1993. All the offences arising out of violation of human rights will have to be dealt only by the Human Rights Court specially established for the purpose of speedy trial of such cases, as contemplated under Section 30 of the Protection of Human Rights Act, 1993. Therefore, he would contend that the petitioner has come forward with the present petition seeking quashment just to stall the proceedings initiated by the complainant, who is aggrieved.
8. As per Section 2(d) of the Protection of Human Rights Act, 1993, "Human Rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.
9. The Human Rights Court specified under Section 30 of the said Act is the Human Rights Court as per the definition found in Section 2(e) of the said Act.
10. The legislature in its wisdom has thought it fit to constitute Human Rights Court for the speedy trial of the offences arising out of violation of human rights in the State.
11. Two important aspects are very obvious under Section 30 of the Protection of Human Rights Act, 1993. The Human Rights Courts have been established for the purpose of speedy trial of the offences arising out of violation of human rights. Secondly, all the offences arising out of violation of human rights will have to be dealt only by the Human Rights Courts established under Section 30 of the said Act. The nature of offences arising out of violation of human rights have not been defined under the Protection of Human Rights Act, 1993.
12. State Human Rights Commission is constituted as stipulated under Section 21 of the said Act. Coming to the functions and powers of the Commission, it is seen that under Section 12 of the said Act, the Commission is authorised to inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into the complaint of violation of human rights or abetment thereof or negligence in the prevention of such violation by a public servant.
13. The Commission may initiate an enquiry under Section 17 of the said Act, if it considers necessary to do so, having regard to the nature of the complaint. The follow up measures to be taken by the Commission after the enquiry is dealt under Section 18 of the Act. Where the inquiry discloses, the commission of violation of human rights or negligence in the prevention of violation of human rights by a public servant, the Commission may recommend to the Government or authority concerned for initiation of proceedings for prosecution or such other action as the Commission may deem fit.
14. It is pertinent to refer to the definition of complaint found under Section 2(c) of the State Human Rights Commission, Tamil Nadu (Procedure) Regulations, 1997. It reads as follows:
"2(c) "Complaint" means all petitions or communications, received by the Commission from a victim or any other person on his behalf, in person by post or by telegram or by Fax or by any other means whatsoever, alleging violation or abetment thereof or negligence in the prevention of such violation, by a public servant, of all or any of the human rights defined in Section 2(d) read with Section 21(5) of the Act."
15. The cumulative reading of Section 12(a) and 18 of the Protection of Human Rights Act, 1993 and Section 2(c) of the State Human Rights Commission, Tamil Nadu (Procedure) Regulations, 1997 would reveal that the State Commission has the authority to deal with a complaint as against a public servant. The Division Bench of our High Court in Santosh Hospitals Private Limited v. State Human Rights Commission 2005(3) M.L.J. 406 has chosen to set aside the proceedings taken by the State Human Rights Commission as against a private individual. The Division Bench has categorically held that the Protection of Human Rights Act, 1993 contemplates initiation of proceedings by the State Human Rights Commission only as against a public servant and not against a private individual.
16. If we closely read the entire Protection of Human Rights Act, 1993, one thing is loud and unambiguous. The Human Rights Commission has the power to enquire into complaint of violation of human rights as against a public servant. But the Human Rights Court specially established under Section 30 of the said Act has the power to try offences arising out of violation of human rights. When an offence has been committed against the background of human rights violation, the Commission has virtually no power to deal with such offences to its logical end except holding an enquiry as against the public servant and recommending for necessary action by the State Government.
17. There is no provision in the Protection of Human Rights Act, 1993 which speaks about routing of all the complaints relating to the offences arising out of human rights only through the State Human Rights Commission constituted under the Act. Even if an offence arising out of the human rights was committed against a public servant, it is not mandatory that such aggrieved person should route his complaint only through the Human Rights Commission, as the Human Rights Commission has the power to deal with only the violations of human rights and not the offences arising out of human rights. If at all the legislature in its wisdom has meant to route all the complaints relating to violation of human rights through the State Human Rights Commission, it would have covered the complaints preferred as against the private individuals also. What has been contemplated under the definition 'complaint' in Section 2(c) of the State Human Rights Commission, Tamil Nadu (Procedure) Regulations, 1997 is only the complaint alleging violation or abetment of human rights and not complaints traversing offences arising out of human rights violation.
18. The offences under the Indian Penal Code are tried by various Courts in the judicial hierarchy in the State. The Special Courts have been constituted under Section 30 of the Act, as the legislature has thought it fit to dispose of those cases at the earliest point of time, as it involves violation of human rights also.
19. No special procedure has been contemplated under the Protection of Human Rights Act for the trial of offences arising out of human rights. The powers of the Human Rights Courts also have not been codified under the Act. Therefore, when the criminal Courts in the judicial hierarchy in the State have the power drawn under the Code of Criminal Procedure to deal with the offences under the Indian Penal Code, the Human Rights Court constituted under the special statute sans any special procedure enshrined therein has to fall back on the Code of Criminal Procedure. The definition under Section 2(d) of the Code of Criminal Procedure, 1973 will apply to the complaint preferred alleging commission of offences arising out of human rights violation also. Section 193 of the Code of Criminal Procedure puts an embargo on the Court of Session to take cognizance of any offence unless the case has been committed to it by a Magistrate under the Code of Criminal Procedure.
20. This Court has held in Dr.S.Sourubarani & another v. C.Selvi 2005(1) L.W.(Crl.) 139 that the Human Rights Court has no power to entertain the complaint directly without the committal proceedings taken by the Judicial Magistrate concerned.
21. This Court in Crl.O.P.No.3473 of 2006 dated 20.04.2006 has directed the learned Judicial Magistrate concerned to take the private complaint alleging commission of offences arising out of Human Rights on file for the purpose of committing the case to the specially constituted Human Rights Court for trial.
22. To sum up the Human Rights Commission has the authority to enquire into only the violations of human rights as against a public servant, suo motu or on a complaint preferred before the Commission. A complainant is not obliged to lodge a complaint against a public servant, if an offence arising out of violation of human rights is committed.
23. The Human Rights Court specially constituted under the Act shall deal with all the offences arising out of human rights violation. As the Human Rights Court has no power to entertain a complaint directly as it has no original criminal jurisdiction, the private complaint will have to be preferred only before the Judicial Magistrate concerned, who shall initiate the committal proceedings and commit the case for trial before the Human Rights Court. The Judicial Magistrate concerned under Section 190 r/w Section 200 of the Code of Criminal Procedure has every authority to entertain the private complaint filed under the Human Rights Act for the purpose of committing the same for trial before the Human Rights Court.
24. Coming to the submissions made by the learned counsel for the petitioner that no offence under the Protection of Human Rights Act, 1993 was committed by the petitioner, it is found, on a thorough perusal of the complaint given by the complainant that he has specifically stated that he had been forcibly taken by the accused and was kept in the police station without even providing food for about eight long hours on 19.04.2003. The further allegation is that he was tortured and harassed to give cheque and subscribe his signature in stamp papers and accordingly he had to sign in two stamp papers dated 28.03.2003. Illegal custody of the petitioner in the guise of a complaint has also been alleged in the complaint. Violation of right to life, liberty and dignity of the complainant is made out in the aforesaid allegations levelled against the accused.
25. Detaining a person in the police station for eight long hours without providing any food may not attract any offence under the Indian Penal Code. But definitely it constitutes violation of human right to life, liberty and dignity of an individual. Therefore, it is not a simple case where some offences under the Indian Penal Code have been allegedly committed by the accused as against the complainant. Human Rights Violation as per the definition of Section 2(d) of the Protection of Human Rights Act, 1993 is prima facie made out in the complaint.
26. Under the above facts and circumstances, it is found that the learned Judicial Magistrate No.I, Thanjavur has rightly entertained the private complaint for processing it for the purpose of committing the same to the Human Rights Court for trial. The accused has simply filed this petition with the above untenable and unsustainable pleas just to protract the proceedings.
27. In the result, the petition seeking quashment of the criminal proceedings in P.R.C.No.38 of 2005 on the file of the learned Judicial Magistrate No.I, Thanjavur stands dismissed. Consequently, the connected miscellaneous petitions are also dismissed.
sml To The Judicial Magistrate No.I, Thanjavur.