Madras High Court
Muruganantham vs The State Human Rights Commission ... on 2 February, 2011
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar, R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/02/2011 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Writ Petition (MD) No.13560 of 2010 & M.P(MD)Nos.1, 2 of 2010 Writ Petition (MD) No.15035 of 2010 & M.P(MD)Nos.1, 2 of 2010 Writ Petition (MD) No.15036 of 2010 & M.P(MD)Nos.1, 2 of 2010 Writ Petition (MD) No.15037 of 2010 & M.P(MD)Nos.1, 2 of 2010 Muruganantham .. Petitioner in W.P.(MD)No.13560/2010 Madasamy .. Petitioner in W.P.(MD)No.15035/2010 Kamala .. Petitioner in W.P.(MD)No.15036/2010 Gopalakrishnan .. Petitioner in W.P.(MD)No.15037/2010 vs 1. The State Human Rights Commission Tamilnadu, "Thiruvarangam", No.143, P.S.Kumarasamy Raja Salai, (Greenways Road), Chennai - 600 028. 2. The Secretary to the Government, Home Department, Fort St.George, Chennai. 3. The Superintendent of Police, Tirunelveli District. 4. K. Kumar .. Respondents in all writ petitions The above writ petitions are filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorari calling for the records in SHRC Case No.5955 of 2006 order dated 12.3.2010 on the file of the first respondent and the consequential order passed by the second respondent in G.O(D)No.903 dated 8.9.2010 and quash the same. !For Petitioners in all writ petitions ... Mr.M.Veilkani Raju ^For 1st Respondent in all petitions ... Mr.P.Natarajan For Respondnets 2 and 3 in all ... Mr.M.Rajarajan, writ petitions Government Advocate For 4th respondent ... Mr.K.Perumal :COMMON ORDER
N.PAUL VASANTHAKUMAR, J.
These writ petitions are filed challenging the order of the State Human Rights Commission in SHRC Case No.5955 of 2006 dated 12.3.2010 and the consequential order issued in G.O.(D)No.903 Home (Pol-16) Department, dated 8.9.2010 passed by the second respondent, directing the the Director General of Police to recover a sum of Rs.15,000/- each from the pay and allowances of Muruganantham, Sub Inspector of Police and Kamala, Woman Sub Inspector of Police (petitioners in W.P.Nos.13560 and 15036 of 2010 respectively), and Rs.5,000/- each from the pay and allowance of Madasamy and Gopalakrishnan, Head Constables (petitioners in W.P.Nos.15035 and 15037 of 2010). In the said Government order, a further direction is given to initiate disciplinary action against the petitioners herein under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955.
2. The brief facts necessary for disposal of these writ petitions are as follows:
(a) The 4th respondent in these writ petitions viz., K.Kumar approached the State Human Rights Commission alleging that on 3.10.2006 when he was travelling in a TVS Champ Motor Cycle bearing registration No.TN-67-X-7401 from his native place to Sankarankovil and while he was crossing the Karivalamvandanallur Police Station at 10.30 hours, he was stopped by the petitioners and was asked about the documents pertaining to the vehicle and the driving licence.
(b) According to the petitioner, he had produced the same to the Woman Sub-Inspector of Police Kamala (petitioner in W.P.No.15036 of 2010), who on verification informed that the photo affixed in the driving licence does not tally with the 4th respondent herein and asked him from where the 4th respondent got that vehicle. The 4th respondent replied that he is a retired Fire Officer and the photo affixed in the driving licence was of his own and that the vehicle is owned by himself. The said Sub-Inspector of Police then told that the 4th respondent looks like a drunken person. and the other two constables (petitioners in W.P.Nos.15035 and 15037 of 2010) and the other Sub-Inspector of Police (petitioner in W.P.No.13560 of 2010), present there also told that the 4th respondent was in a drunken state.
(c) The 4th respondent requested the said Sub Inspector of Police viz.
Kamala to verify his identity over phone from Sankarankoil Fire Station from where he retired. It is further alleged by the 4th respondent that the other Sub-Inspector of Police viz., Muruganandam (petitioner in W.P.13560 of 2010) suddenly caught hold of the 4th respondent's shirt and slapped at his cheek. The 4th respondent pleaded for not beating him. The said Muruganantham pushed the 4th respondent, due to which the 4th respondent fell down and got blood injuries below his right knee.
(d) The 4th respondent was taken to the Karivalamvandanallur police station by the petitioners herein and they severely beat the 4th respondent. A case was registered against the 4th respondent in Cr.No.166 of 2006 under section 75 of the Tamil Nadu City Police Act. The petitioners forcibly obtained the signature of the 4th respondent in some papers. The 4th respondent's request to allow him to contact his wife was not conceded. No information was given regarding the arrest of the 4th respondent to his relatives. Former Village Panchayat President of the Village was summoned and signatures were also obtained from him by force. The 4th respondent was not permitted to contact his lawyer.
(e) The 4th respondent pleaded for releasing him on bail before the Sub Inspectors of Police as the criminal case registered is under bailable section, however, he was not released on bail. At about 3.30 p.m. the 4th respondent was produced before the learned Judicial Magistrate, Sankarankoil with hand-cuf and he was remanded. Petitioners herein took the 4th respondent with hand-cuf to Karivalamvandanallur Police Station and tied his legs with chain in the door of the cell. He was treated at Palayamkottai General Hospital and later imprisoned at Palayamkottai Central Jail. He was forced to be in jail for about a week and he came out on bail only on 10.10.2010.
(f) The petitioners herein advised the 4th respondent to admit the case and remit the fine, to which the 4th respondent refused to oblige. He was threatened with foisting of false cases against him as well as his family members. Alleging as above, the 4th respondent approached the Human Rights Commission and prayed for compensation.
3. The Woman Sub-Inspector of Police Kamala filed counter affidavit and stated that when she was doing her duty while checking the vehicles the 4th respondent argued loudly with her for 30 minutes. The public gathered and she asked the 4th respondent to show his driving licence and other documents, for which the 4th respondent replied that it is not possible to carry those documents always with him and he is not possessing the same right now. According to the Sub-Inspectors of Police, the 4th respondent made a derogatory remarks and consequently the other Sub-Inspector Muruganandam served notice under the Motor Vehicles Act for not possessing driving licence and other related documents when the vehicle was checked at 11.00 a.m. After receiving the notice the 4th respondent again shouted loudly and uttered ugly words against the petitioners, who were discharging their official duty. Hence the 4th respondent was arrested at 11.20 a.m. and brought to the police station and a case in Cr.No.166 of 2006 was filed under Section 75 of the Tamil Nadu City Police Act.
4. The Human Rights Commission framed the following four issues:
1) Whether the arrest of the complainant (4th respondent) made by the respondents is judicially justified ?
2) Whether R2 slapped the petitioner on his cheek at the check-post and after that whether all the four respondents (petitioners herein) assaulted the petitioner at the station ?
3) Whether the arrest was informed to the petitioner's relatives ?
4) Whether the complainant was hand-cuffed and whether he was brought back to the police station and tied his leg with a leading chain ?
5. Issue Nos.1 and 4 were found against the petitioners and SHRC submitted its report to the Government and the Government also accepted the same and issued the impugned Government Order.
6. Heard the learned counsel appearing for the petitioners, learned counsel appearing for the 1st respondent and the learned Government Advocate for respondents 2 and 3.
7. The 4th respondent herein was examined as PW-1 before the Human Rights Commission. The petitioners herein contended before the Human Rights Commission that the 4th respondent was in a drunken state. However, to prove the same no medical certificate was produced. As per the stand of the petitioners herein the offence committed by the 4th respondent was that he uttered insulting/filthy words in threatening manner and created nuisance in public place. The case registered against the 4th respondent was under Section 75 of the Tamil Nadu City Police Act. The said offence is a bailable offence as admitted by RW-1 Kamala during the cross examination. Even though a case is registered under bailable offence, the 4th respondent was not released on bail, in spite of his request to release him on bail before RW-1 and RW-2. Taking note of the trivial nature of the case registered, the SHRC gave a finding that the Sub-Inspectors have grossly misused their official power and caused mental agony to the 4th respondent.
8. Issue No.2 viz., whether the petitioner in W.P.No.13560 of 2010 Muruganantham slapped the 4th respondent on his cheek and all four petitioners assaulted the 4th respondent at the Police Station is held as not proved by the Commission, against which no challenge is made. Therefore we are not called upon to go into that aspect.
9. With regard to the third issue, i.e, whether the arrest of the 4th respondent was informed to his relatives, a specific finding is given by the Human Rights Commission that the arrest was informed to one Muthuramalingam as well as others, who belong to 4th respondent's native village. Hence the said issued was held not proved. The same is also not challenged by the 4th respondent.
10. The 4th issue was whether the 4th respondent was hand-cuffed and whether he was brought back to the police station and his legs were tied with a leading chain. The SHRC gave a finding in favour of the 4th respondent believing the deposition of PW-1 and PW-3 that the petitioners attempted to hand-cuf the 4th respondent before taking him to Court, however PW-3 objected to the same. The case registered being under section 75 of the Tamil Nadu City Police Act, which is a petty case, the attempt made to hand-cuf the 4th respondent is for inflicting maximum torture and mental agony. The 4th respondent was brought back to the police station and his legs were tied with a leading chain is also found proved by the the Human Rights Commission based on the materials available. The said finding is rendered in para 15 of the order of the Human Rights Commission.
11. On the basis of the above factual findings, the State Human Rights Commission made the following recommendations:
(1) The Government of Tamil Nadu shall make a payment of Rs.40,000/- (Rupees Forty Thousand only) to the complainant Thiru K.Kumar within 10 weeks from today, towards compensation for violation of human rights by the four respondents (petitioners herein).
(2) After making such payment, the Government of Tamil Nadu shall recover a sum of Rs.15,000/- each (Rupees Fifteen Thousand only) from the pay and allowances of the first & second respondents (viz., Tmt.Kamala, Woman SI of Police & Thiru.Muruganantham, SI of Police, Karivalamvanthanallur PS) and a sum of Rs.5,000/- each (Rupees Five Thousand only) from the pay and allowances of the third & fourth respondents (viz., Thiru Gopalakrishnan, HC-2235 & Thiru Madasamy, HC 1248 of Karivalamvandanallur PS) in installments.
12. The said findings and recommendations are accepted by the Government and the same is recorded in para 4 of the Government Order. The petitioners' contention is that the Criminal Court gave a finding that the 4th respondent committed offence under Section 75 of the Tamil Nadu City Police Act and the imprisonment already undergone by the 4th respondent i.e, from 3.10.2006 to 9.10.2006 was treated as sufficient sentence and there is delay of 28 days in filing the complaint before the first respondent on the part of the 4th respondent. It is also contended that after the said order passed by the criminal Court on 6.7.2010 the Government accepted the Human Rights Commission's recommendations and directed the Director General of Police to recover a sum of Rs.15,000/- each and Rs.5,000/- each as stated supra and also directed disciplinary action to be initiated under section 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955.
13. It is seen from the records that the petitioner in W.P.No.13560 of 2010 Muruganantham earlier filed W.P.No.11081 of 2010 and challenged the order of the Human Rights Commission dated 12.3.2010 and on 16.9.2010 the said writ petition was withdrawn without any liberty. The petitioner filed a false affidavit stating that he obtained liberty. The said fact is evident on perusal of the order passed by this Court, which reads as follows, "Learned counsel for the petitioner seeks to withdraw the writ petition and he has also made an endorsement to that effect. Accordingly, the writ petition is dismissed as withdrawn. Consequently, M.P.(MD)No.1 of 2010 is also dismissed. No costs."
Thus, the said Muruganantham is not entitled to challenge the Commission's findings, recommendations and the consequential Government order dated 8.9.2010 on any grounds. The said issue i.e., whether a person, who withdrew a writ petition without liberty is entitled to file another writ petition, is already decided by the Supreme Court in the decision reported in AIR 1987 SC 88 : (1987) 1 SCC 5 (Sarguja Transport Services v. S.T.A.Tribunal, Gwalior). In para 9 the Supreme Court held thus, "9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case (AIR 1961 SC 1457) is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental rignt guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open."
14. Insofar as the other petitioners are concerned, the Human Rights Commission, as stated supra has given cogent reasons regarding ill-treatment and mental agony caused to the 4th respondent and made recommendations as a fact finding authority, which were accepted by the Government. The arrest of the 4th respondent against whom only an offence under Section 75 of the Tamil Nadu City Police Act was registered and he was confined in jail for seven days, though the offence is a bailable offence, speaks volumes of ill-will shown towards the 4th respondent by the petitioners. In the decision reported in AIR 1994 SC 1349 :
(1994) 4 SCC 260 (Joginder Kumar v. State of U.P.) the Supreme Court held that need to arrest a person should be established as by arresting a person the police is denying a person his liberty, which is a serious matter. In paragraph 20 (in SCC) the Supreme Court held as follows:
"20. ............ No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. ............."
The action of the petitioners in hand-cuffing or attempting to hand-cuf and chaining him is also a serious violation of his human right and inhuman. The Honourable Supreme Court in the decision reported in AIR 1996 SC 2193 (President Citizen for Democracy v. State of Assam) issued guidelines to be followed by the Police Personnel while attempting to hand-cuf or hand-cuf a person either insde the jail or on arrest being made. In paragraphs 16 to 22 the Supreme Court held thus:
"16. We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner - convicted or undertrial - while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to court and back. The police and the jail authorities, on their own, shall have no authority to direct the handcuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to court and back.
17. Where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner.
18. In all the cases where a person arrested by police, is produced before the Magistrate and remand - judicial or non-judicial - is given by the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of the grant of the remand.
19. When the police arrests a person in execution of a warrant of arrest obtained from a Magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the Magistrate for the handcuffing of the person to be so arrested.
20. Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guidelines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate. Further use of fetters thereafter can only be under the orders of the Magistrate as already indicated by us.
21. We direct all ranks of police and the prison authorities to meticulously obey the above-mentioned directions. Any violation of any of the directions issued by us by any rank of police in the country or member of the jail establishment shall be summarily punishable under the Contempt of Courts Act apart from other penal consequences under law. The writ petition is allowed in the above terms. No costs.
22. Copy of this judgment be sent to Government of India, Ministry of Home Affairs and to all the State and Union Territory Governments through Home Secretaries."
15. The first respondent is created under Section 21 of the Protection of Human Rights Act, 1993. The findings given by the Human Rights Commission are based on appreciation of oral and documentary evidence, which establish the facts of arresting the 4th respondent for the alleged offence under Section 75 of the Tamil Nadu City Police Act, 1988; attempt to hand-cuf the 4th respondent; not released him on bail though the offence is a bailable offence; and, after remand, again took the 4th respondent to the Police Station and chained his legs. All the above facts clearly prove the fact of Human Rights violations made to the 4th respondent by the Law Enforcing Officers, who are not expected to violate human rights of a citizen, who is not a notorious criminal.
16. The delay on the part of the 4th respondent in approaching the first respondent regarding the Human Rights violation cannot be treated as a ground to disbelieve the version of the 4th respondent, particularly in the light of the statutory provision in Section 36(2) of the Act, which reads as follows:
"36(2). The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed."
17. We are unable to see any perversity in the findings of the first respondent/State Human Rights Commission and also in the order passed by the Government, warranting interference under Article 226 of the Constitution of India. Consequently, W.P.Nos.15035 to 15037 of 2010 are dismissed without any order as to costs. W.P.No.13560 of 2010 is dismissed with costs of Rs.2,500/- payable to the Mediation and Conciliation Centre of this Court, as the petitioner has filed second writ petition, which is an abuse of process of the Court. Connected miscellaneous petitions are also dismissed.
vr To
1. The State Human Rights Commission Tamilnadu, "Thiruvarangam", No.143, P.S.Kumarasamy Raja Salai, (Greenways Road), Chennai - 600 028.
2. The Secretary to the Government, Home Department, Fort St.George, Chennai.
3. The Superintendent of Police, Tirunelveli District.