Bombay High Court
Council For Protection Of Human Rights vs The State Of Maharashtra And Others on 29 February, 2000
Equivalent citations: 2000(5)BOMCR821, 2000BOMCR(CRI)~, 2000(2)MHLJ242
Author: B.H. Marlapalle
Bench: B.H. Marlapalle, D.S. Zoting
ORDER B.H. Marlapalle, J.
1. The petitioner namely Council for Protection of Human Rights at Aurangabad, claims to be an organisation formed for the protection of human rights and also to voice against the violation of human rights. It does not appear to be an organisation which has registered itself under a relevant statute of the State or the Central Government and the learned Counsel for the petitioner stated that after filing the petition in the nature of a Public Interest Petition, it has taken steps to register itself and the application for such a registration is pending before the Assistant Charity Commissioner at Aurangabad for registration under the Societies Registration Act, as well as under the Bombay Public Trusts Act. In this petition the prayers made are substantially as under :-
(i) The Central Bureau of Investigation be directed to investigate the whole incident of police violence that has allegedly taken place on 6-12-99 on the premises of Vikram Stadium (a police-ground) at Aurangabad.
(ii) To direct to pay an amount of Rs. 10,00,000/- as a compensation to the near relations of a person who lost his life and similar amount be paid to the lady victims whose modesty was outraged by the Police.
(iii) To direct to pay an amount of Rs. 2,00,000/- to those victims who got severe injuries and Rs. 1,00,000/- to those who got minor injuries.
(iv) To direct to suspend all the Police persons involved in the incident of alleged violence on 6-12-1999, and
(v) Respondent No. 2 be directed not to arrest the victims and other innocent persons by involving in false cases and to follow the guidelines of the Hon'ble Supreme Court in the case of Joginder Kumar v. State of U.P., .
2. It is the case of the petitioner organisation that on 6-12-1999 it was decided to stage Dharna at several places in the Aurangabad city by the Samajwadi Party and Muslim Action Committee but on the request of the Police Commissioner the place for Dharna was confined only to Nizamuddin Chowk. While these activists were holding Dharna on 6-12-1999 between 1 a.m. and 3 p.m. they were arrested by the Police and taken in Police vans to the Vikram Stadium which is located in the campus of the Police Commissionerate at Aurangabad. This first Dharna was by the Samajwadi Party and at about 3 p.m. when Dharna at the instance of the Muslim Action Committee was undertaken the Police again arrested the activists and they were all taken to Vikram Stadium in the Police vans. The total number of persons who were arrested and taken to Vikram Stadium were around 1500. The arrested persons were provided meals by the Samajwadi Party and they had offered their mid-day prayers at about 3 p.m. When they sought permission to return to their homes, the Police Commissioner allegedly did not allow them to leave Vikram Stadium premises. The authorities did not make any provision for civil amenities like drinking water, toilet, etc. and there was an alteration between the detenues and the Police Officers. The Police Officers closed the doors of the Vikram Stadium and heavy stone pelting started by the Police from outside the stadium on the mob detained at about 4 a.m. and there was an air fire which is a signal for the Police and the S.R.P. The members of the mob were mercilessly beaten, subjected to heinous attacks and inhuman treatment at the hands of the police force. Some lady corporators were also mercilessly beaten, more than 100 persons had received injuries (photographs in this regard have been attached to the petition). Some journalists were also present on the spot allegedly at the instance of the Police Commissioner and when they sought to interview the Police Commissioner on the eruption of violence instead of receiving the information they received a brutal attack from the police and about 12 pressmen journalists also fell victim to these violent attacks by the Police. Allegations have also been made that there was widespread looting of ornaments from the female detenues and also cash was looted by the Police personnel. The articles like camera, pagers, mobile phones with the press reporters and the journalists were also snatched and damaged. The video tapes taken were snatched and confiscated.
3. The petitioner organisation therefore, claims that the acts of violence and atrocities as described in the petition at the hands of the Police personnel and at the behest of the Police Officers including the Police Commissioner amount to violation of fundamental rights of the citizens and more particularly the victims or the persons who were detained by the Police on 6-12-1999 and therefore, this Court must invoke its extra ordinary power under Article 226 of the Constitution and handover the investigation to the C.B.I. more particularly when the allegations of atrocities are against the police personnel themselves.
4. The C.B.I. as well as the Deputy Commissioner of Police at Aurangabad have filed affidavit-in-reply opposing the petition. Regarding the incident of 6-12-99 the Police have put up a different story before this Court. It is stated that on 6-12-1999 the Muslim Action Committee as welt as the Samajwadi Party had organised Rasta Roko, Jail Bharo Agitation and Aurangabad Band in protest of demolition of Babri mosque and at several places of Aurangabad city. The Commissioner of Police decided to give permission for such demonstrations only at Nizamuddin Chowk between 10 a.m. and 12 noon for the Samajwadi Party and between 3 p.m. and 5 p.m. for the Muslim Action Committee. At about 11 a.m. agitators of the Samajwadi Party gathered and blocked the road at Nizamuddin Chowk. At the same time there were other violent instances which were reported in the other parts of the city. The Commissioner of Police had issued prohibitory orders on 20-11-99 for a period of 15 days i.e. from 25-11-99 to 9-12-1999 under section 37(1)(3) of the Bombay Police Act. The mob was informed that they were detained under section 69 of the Bombay Police Act and they were taken in Police vehicles and detained at Vikram Stadium behind the Police Commissioner's office. Some other incidents were reported in the Sarafa area and the Police had to chase the agitators and 7 persons were arrested in the City Chowk Police Station. There was another incident at Chowk Bazar area, where C.R. No. 276/99 came to be registered against unknown agitators causing damages to the property. Again at about 3 p.m. the agitators of the Muslim Action Committee gathered and blocked the road at Nizamuddin Chowk and therefore, they were detained and taken in Police vehicles and S.T. Buses. There were thus about 1600 to 1800 persons taken to Vikram Stadium by the Police and some of them became aggressive and damaged S.T. Buses and Police vans by breaking glasses and tearing the seats. Some of the agitators snatched papers from the Police and started pelting stones. Initially the Police Inspector on duty Shri Surwase, warned the mob to stop the unlawful activities but the agitators continued to indulge in unlawful activities. Some of them burnt the police vehicles i.e. two motor cycles and also damaged other vehicles. P.I. Surwase, gave three warnings to the agitators and when he noticed that agitators did not stop indulging in violent activities, he ordered lathi-charge. Inspite of the lathi-charge, agitators did not disperse and started attacking the Crime Branch gate. The warnings given by the P.I. were not responded and the agitators resorted to heavy stone pelting. At this juncture P.I. Surwase, ordered the S.R.P.F. to open fire.
5. The State has also taken a plea that this petition is not tenable on the grounds that (a) the petitioner society is not registered and it has no legal existence and (b) the State Government has already constituted Commission of Enquiry vide G.R. dated 10-12-99 under section 3 and 5 of the Commission of Enquiries Act, 1952. A retired Judge of this Court has been appointed as the Commission of Enquiry to enquire into and make report- This plea of the State Government has been supported by the C.B.I. and the C.B.I. has further taken a plea that such enquiries to the C.B.I. are handed over as a last measure and only if there is a break down of and total inaction on the part of the State investigating machinery. The C.B.I. has further voiced its inability to undertake such an enquiry due to lack of manpower.
6. The learned Counsel for the petitioner has filed a rejoinder and cited a number of judgments of the Supreme Court as well as this Court in support of his prayer for handing over the investigations to the C.B.I. He has submitted that when there is a case made out of violation of fundamental rights at the hands of the Police personnel, there cannot be any effective investigation by any other agency other than the C.B.I. and this is a fit case where this Court ought to invoke its powers under Article 226 and entrust the investigation to the C.B.I. It was claimed that the enquiry by the Commission of Enquiry as appointed by the Government of Maharashtra would not meet the ends of justice inasmuch as (a) The enquiry is never completed within a specified period; (b) as and when the enquiry is completed, the Government does not take any action on the report submitted by the Commission and the report is put in cold storage; (c) the report is never made public and that is why the victims would be ignorant of the findings of the Enquiry Commission. In support of these arguments he has cited a recent case of justice B.N. Shrikrishna Enquiry Commission. So far as the prayer for compensation/damages is concerned, the learned Counsel fairly conceded that the said prayer will have to be examined only after investigations are made into the allegations of injuries, disabilities either permanent or temporary and the human sufferings etc. by a competent authority and as at present such a prayer cannot be considered. He therefore, urged before us to admit the petition and wait for the Enquiry Commission to submit its report.
7. It is well established by now that for the crimes committed by the Government employees the State is liable to pay compensation to the victims by way of vicarious liability if such crimes have been committed in the Government premises and we may usefully refer in this regard to a recent judgment of the Supreme Court in the case of The Chairman, Railway Board and others v. Mrs. Chandrima Das and others, . In the case of D.K. Basu v. State of West Bengal and others, , the Apex Court held that the Supreme Court and the High Courts can grant compensation to the victims for established breach of fundamental rights in addition to the private law remedy for tortious action and punishment to the wrongdoer under the criminal law. However, before such a claim is required to be considered, it is necessary that a designated investigating agency/authority records its findings after hearing all the concerned parties and the charges of crimes or atrocities and/or deprivation of fundamental rights at the hands of police are duly established. As on today the prayer for compensation cannot be looked into by this Court in a Public Interest Petition under Article 226 of the Constitution and the said prayer is therefore, premature.
8. Coming to the prayer for handing over the investigation to the C.B.I., the State Government has opposed the petition, firstly on the ground of locus-standi of the petitioner organisation. In the recent past this Court as well as the Apex Court has taken a view that when an organisation comes with a Public Interest Litigation, it should have a legal status. This petition was presented before this Court on 14-12-99 and the petitioner was not a registered organisation on that date and as on today also its status has not changed.
9. The Government has also relied upon a judgment of the Supreme Court in the case of All India Institute of Medical Sciences Employees Union (Regd.) through its President v. Union of India and others, , wherein the Supreme Court held that a writ petition to issue mandamus against the Police to investigate into the allegations levelled against former Director of the All India Institute of Medical Sciences was not maintainable without availing all the procedure provided under the Code of Criminal Procedure and more particularly under sections 156, 157, 173 and 190 read with sections 200 and 203. The said judgment is not applicable in the present case because the allegations of violence are against the Police force itself and the Police Officers are protected under the provisions of sections 132 and 159 to 161 of the Code of Criminal Procedure.
10. The protectors of law cannot be allowed to be the persecutors and when police become the perpetrators of crimes or atrocities on the citizens, they are committed under the shield of uniform and authority in the four wails of the police premises. Under the pretext of preventive action, the police cannot subject the persons in custody to tortures or third degree methods. Even when a person is detained by the police his rights guaranteed under Article 21 of the Constitution are intact and such a right would include within itself a guarantee against torture or assault by the State or its functionaries including the police. This Court as the custodian and protector of the fundamental and the basic human rights of the citizens will be prompt in coming to the rescue of such victims so as to ensure that his constitutional right is not infringed and he is duly protected from such atrocities at the hands of the law protectors in uniform. The averments made in the petition make out a case of not only heinous crimes but also a case of gross violation of human rights at the hands of the Police force. Sufficient material in support of these averments has been brought on record in terms of the photographs of the victims etc. Notwithstanding these allegations and their seriousness the fact remains that the State Government has its own story to tell. We cannot examine the veracity of the respective allegations and counter allegations while deciding this petition. What is before us for our consideration is whether there is a case to direct the C.B.I. to undertake the investigations into the alleged incident of 6-12-1999 at Vikram Stadium (Police Commissionerate at Aurangabad) at this stage and our answer is an emphatic no.
11. This Court would be justified in exercising its power under Article 226 of the Constitution only when it is demonstrated that the law and order machinery has come to a stand-still and the State has not taken any steps to protect the interests of the victims by ordering investigations. The State of Maharashtra by issuing the Government Gazette dated 10-12-99 has taken prompt and timely action in appointing a Commission of Enquiry headed by a retired Judge of this Court (Mr. Justice A.D. Mane) and the Commission is required to enquire into and make a report on (1) the background of the incident, chain of events leading to use of force and lathi charge by police and whether police had taken adequate precautions to deal with the agitation; (2) whether the said agitation and subsequent events were preplanned or whether any individual or group of individuals or organisation or an incident was responsible for the agitation and the consequent police lathi charge; (3) whether the steps taken by the police to keep the situation under control and restore the peace were adequate and in accordance with the established procedure, and whether lathi charge made by the police was essential and to the extent warranted by the situation or whether it was more than required; (4) whether the allegation that press persons and photographers were targeted and assaulted by the police is based on facts and if so the nature of the assault and whether it was necessary; (5) fixing the responsibility for the lapses if any in (1), (2), (3) and (4) and persons responsible for it; (6) measures and precautions which are required to be taken by the police and the administration to avoid recurrence of such incidents and; (7) any other matter of general importance regarding the above incident.
12. The Government has further stated that the Commission shall submit its report within a period of two months from the date of publication of this notification in the Official Gazette. We are informed across the Bar by the Government Pleader that the Government has already issued a notification extending the period of Commission by another two months. The learned Government Pleader has placed on record a copy of the notification in this regard. It is also common knowledge that the enquiry by the Commission is in progress. The terms of the Commission namely the issues to be enquired into and a report to be made about i.e. from 1 to 5 above are comprehensive enough to meet the demands of investigation as have been put up before us in the instant petition.
13. It would be unsafe for this Court to presume that the State Government does not take any further action on the report of the Enquiry Commission in every case and the State Government will not act on the report of the Enquiry Commission as appointed in the instant case (Justice A.D. Mane Commission). The Commission of Enquiry is a forum which is available to the petitioner as well as the persons who have fallen victims to the alleged brutal attacks a the hands of the police force on 6-12-99. It is reported that one person died while under treatment, 3/4 persons have become blind and several persons have received injuries causing permanent full/partial disabilities. A number of persons were subjected to inhuman and third-grade methods at the hands of the police in the said incident of 6-12-1999 as has been made out in the petition. All these details could be placed before the Commission by the concerned persons, their relations, friends, well wishers and the organisations like the petitioner before us. We hope that all such persons will extend their full co-operation to the commission and take all such steps to assist the Commission in recording its findings on all the issues referred to it, within the stipulated period. By constituting an Enquiry Commission by the G.R. dated 10-12-99 the State Government has taken steps for causing investigations into the alleged violence and atrocities at the hands of the police and in such a situation it cannot be said that the constitutional machinery in the State has broken down warranting for this Court to exercise its powers under Article 226 of the Constitution and handover investigations to the C.B.I. Allowing such a prayer would almost amount to defeating the purpose behind the appointment of Commission of Enquiry which has been constituted by the Government of Maharashtra by invoking its powers under the Commission of Enquiries Act, 1952 and that too in a petition filed after the commission came to be appointed.
14. We are therefore, of the considered view that this is not a fit case to entertain the petition under Article 226 of the Constitution and direct the investigation to be handed over to the C.B.I. in respect of the alleged acts of violence, force, atrocities and/or violations of human rights on 6-12-1999 at the hands of the police at Vikram Stadium.
15. In the result, the writ petition is summarily rejected. At the same time we make it clear that our order will not come in the way of the petitioner or any of the victims or their near relations to claim compensation against the State Government or against the officers at an appropriate time by instituting proceedings as may be permissible in law. This order also should not be treated to have examined the allegations made by the respective parties in the instant petition.
16. Writ petition rejected.