Gujarat High Court
Saiyed Ibrahim President vs State Of Gujarat Thro.The Secretary on 8 May, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/6092/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6092 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SAIYED IBRAHIM PRESIDENT
Versus
STATE OF GUJARAT THRO.THE SECRETARY
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Appearance:
MS VIDHI J BHATT(6155) for the PETITIONER(s) No. 1
MS. ASMITA PATEL ASSTT. GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2,3,4
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 08/05/2018
ORAL JUDGMENT
The present petition is filed by the petitioner through the President of the PWD Employees Union Page 1 of 17 C/SCA/6092/2007 JUDGMENT under Articles 14,19 and 21 of the Constitution of India with a prayer as prayed for interalia to issue appropriate writ, order or direction holding the action of the respondent no. 4 of subjecting the petitioner to an illegal search and interrogation on 2.12.2006 as violative of the petitioner's fundamental rights guaranteed under Articles 14,19 and 21 of the Constitution of India and also for the compensation and/or punitive damages to the petitioner in a sum of Rs 5 lakhs for causing violation of the petitioner's fundamental rights as alleged on the ground stated in the memo of the petition.
1.2 The facts of the case briefly summarised are as follows:
2. The petitioner is the President of the PWD Employees Union which is a Trade Union registered under the Trade Unions Act, 1926. The petitioner in his capacity of President of the PWD employees Union had filed hundreds of petitions and therefore, it is contended that on 2.12.2006, the respondent no. 4 had telephoned the petitioner and asked him to remain present at the Bardoli police station. The petitioner was not communicated as to why he has been asked to appear before the respondent no. 4. Thereafter the petitioner was told that he was Page 2 of 17 C/SCA/6092/2007 JUDGMENT required to answer certain questions put to him in connection with some complaint. The piece of paper was never shown to the petitioner and when the allegations were read out, he was shocked due to the allegations levelled against him. After the said incident, the petitioner was immediately informed by the present respondent no. 4 that his residential premises in Surat were required to be searched and accordingly it was searched. It is the case of the petitioner that when he had driven back to his house from Bardoli police station and entered his residential premises, no warrant or authority in writing was shown to the petitioner by the present respondent no. 4 and his officers. Therefore, the Union had asked for the copy of the panchnama, complaint and other papers and the copy of the letter is produced at Annexure A. Respondent no. 4 expressed his inability vide communication at Annexure B and therefore, the petitioner gave legal notice dated 31.1.2007 and in response thereto reply was filed dated 7.2.202007 stating that the subject matter of the notice falls within the jurisdiction of respondent no. 4 and accordingly the grievance of the petitioner had not been redressed which has led to the filing of the petition on the ground stated in the memo of the petition. It is sought to be contended that inter alia branding the petitioner as a terrorist Page 3 of 17 C/SCA/6092/2007 JUDGMENT having links/connections with terrorist organisation in Pakistan has affected his dignity and esteem. Therefore, the reliance is placed on judgment of the Hon'ble Apex Court in the case of State of Maharashtra Vs. Public Concern for Governance Trust and Ors., 2007(1) SCALE 72, wherein the Hon'ble Supreme Court of India has held that :
" Right to reputation is a facet of right to life of a citizen under Article 21 of the Constitution of India."
3. It is contended that the image of the petitioner in the society has lowered which has affected his fundamental right guaranteed under Article 21 of the Constitution of India. Further it is contended that the action of respondent no. 4 subjecting the petitioner to a illegal search and interrogation is violative of Article 21 of the Constitution of India. Reference is made to other judgment of the Apex Court .
4. The affidavit-in-reply is filed by the respondents contending that on 30.8.2006, the higher authority of the State Government received complaint or the letter in the name of the petitioner that he has indulged in anti social activities. As the Police Page 4 of 17 C/SCA/6092/2007 JUDGMENT Inspector, Bardoli had turned his blind eyes, the letter was addressed to the Director General of Police, therefore, the interrogation was necessary as well as the search was carried out. Referring to the provision of Articles 14,19 and 21 of the Constitution of India. It has been contended that none of the rights or the fundamental rights of the petitioner are infringed. It is contended that it is not only the petitioner but even the officers of police were also subjected to the same process. It is contended that the petitioner was neither arrested nor handcuffed nor treated rudely. Reliance is placed on the judgment of the Hon'ble Apex Court Rabindra Nath Ghoshal (2002 (3) GLH 743). It is, therefore, contended that when the question of national security is involved, the agencies of the state government shall ensure that issue is properly investigated to maintain law and order.
5. Rejoinder is also filed by the respondent reiterating the same contentions.
6. There is further affidavit filed by the respondents with details contending that what transpires is that at no point of time, the petitioner was arrested. It is contended that it is the deponent Page 5 of 17 C/SCA/6092/2007 JUDGMENT who had tried to perform his duty as per law and the whole process was initiated on the basis of information received by the office of the then Hon'ble Chief Minister. It is, therefore, contended that as the allegations are made, the information was required to be investigated as it is related to anti national activities. It is also stated that after the statement of the petitioner was recorded by the deponent, the Police Inspector Surat, had informed the deponent to search the petitioner for investigation and he had shown his willingness for the search to prove his innocence. Therefore, it is contended that the respondents had performed his duty and therefore, such petition under Article 226 of the Constitution of India is not maintainable.
7. Heard learned Senior Counsel Shri Shalin Mehta, appearing with Ms. Vidhi Bhatt, learned advocate for the petitioner.
8. Shri Mehta, learned Senior advocate, referred to the background of facts and submitted that the petitioner was called at the police station and was interrogated in respect of the charges which was shockingly regarding the anti national activities. Learned Senior counsel Shri Mehta strenuously submitted that as the petitioner has been working Page 6 of 17 C/SCA/6092/2007 JUDGMENT as the President of the Union, he has been harassed and on the basis of the complaint received he was interrogated without supply of any copy of any complaint or paper. Learned Senior counsel Shri Shalin Mehta submitted that it had caused harassment and if such action is malafide, the petitioner is entitled to claim compensation. In support of the submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court Lalita Kumari Vs Government of Uttar Pradesh and Ors. (2014) 2SCC 1.
9. Learned Assistant Government Pleader, Ms Asmita Patel has submitted that the present petition filed under the article 226 of the Constitution of india is not maintainable. She submitted that the petition is for compensation for the so called violation of fundamental right. Learned Assistant Government Pleader, Ms Asmita Patel submitted that the power of inquiry and investigation are vested with the police authorities and it cannot be challenged. She further submitted that even if there is a grievance with regard to the exercise of such power as provided for investigation, the same could be redressed by appropriate application under the Code of Criminal Procedure before the competent court as Page 7 of 17 C/SCA/6092/2007 JUDGMENT provided in the Code of Criminal Procedure. She submitted that when there are special provisions provided under the Criminal Procedure Code, extraordinary jurisdiction under Article 226 of the Constitution of India may not be exercised and the petitioner cannot invoke extraordinary jurisdiction under Article 226 of the Constitution of India when a mechanism is provided under the Code of Criminal Procedure. Learned AGP Ms. Asmita Patel submitted that the present petition filed under Article 226 of the Constitution of India may not be entertained. She submitted that the prayer regarding the compensation for the alleged violation of fundamental right or harassment can be considered in Civil Court on appreciation of material evidence and the petitioner has to establish about the harassment and malafide action. She, therefore, submitted that it would require the examination of material facts and evidence and therefore, the petitioner can avail the remedy before the Civil court to get the compensation after establishing the relevant facts. Therefore, learned Assistant Government Pleader, submitted that either the petitioner can move for quashing of the proceedings or direction under section 482 of the code of Criminal procedure and or can file suit to claim compensation on the basis of the material establishing the claim for Page 8 of 17 C/SCA/6092/2007 JUDGMENT compensation. She, therefore, submitted that such a petition under Article 226 of the Constitution of India is not maintainable and may not be entertained.
10. In view of the rival submissions it is required to be considered whether the present petition deserves consideration.
11. As it is seen from the background of facts, the grievance of the petitioner is that because he is the President of the Union he has been summoned by respondent no. 4 in connection with some complaint for interrogation with malafide intentions.
12. The submissions and the averments, therefore, are based on the assumption that because the petitioner is the President of the Union, he has been summoned for interrogation in connection with some complaint regarding the anti national activities and therefore, his reputation is affected and he is entitled for compensation. Thus, the petitioner has tried to invoke the jurisdiction of the High Court under Article 226 under some misconception that the petitioner is above law and the respondent authorities have no right to call for interrogation in connection with some serious complaint made and received which led to the detailed inquiry. As it is Page 9 of 17 C/SCA/6092/2007 JUDGMENT revealed from the papers, the complaint received referred to allegation which certainly are of serious in nature which would call for some inquiry and investigation. There is a specific reference to activity of the petitioner that he is a union leader and under the guise of such union activity, he is involved and indulging in terrorists activity and movement of arms and also providing the vital information to such organisations. There is a specific allegation that the local PSI is not taking any steps and the arms were kept at the house of particular persons. It is in this circumstances, when the respondent authorities particularly the Superintendent of Police or the Commissioner of Police has taken a note of such material or the complaint prima facie and therefore, if any inquiry is to be made by which the concerned persons including the person like the petitioner against whom specific allegations have been made were called for some inquiry. Therefore, it cannot be said that there is any abuse of power as the police authorities would be within their right to call any person for inquiry or investigation, prima facie to collect the information and test the veracity of the complaint the police authorities have to make an effort to gather the information and if the approach of the citizens including the person like the petitioner against whom the allegations have Page 10 of 17 C/SCA/6092/2007 JUDGMENT been made and are called for inquiry to verify the nature of allegations no grievance could be made. Therefore the petitioner cannot claim violation of any right much less fundamental right under Article 19 (1)(g) has sought to be canvassed. It is the assumption of the petitioner that merely because he is carrying on union activity, he has been called for inquiry and the harassment is scaused and illegal search is made. It is required to be stated that the complaint has been received with specific averments and allegations about the activities of the petitioner which require some inquiry for which he is called. Therefore no grievance could be made on the ground of harassment or violation of any of the fundamental rights. Further it is admitted position that he is not harassed nor detained and on the contrary it would suggest that he has been allowed to go meaning thereby there is no grudge against the petitioner nor is there any false implication as sought to be made out. Therefore, the say of the petitioner that he has been branded as a terrorist for the mere fact that he was called for an inquiry and it has affected his image in the society is thoroughly misconceived. It is well accepted that under the criminal jurisprudence on the basis of some information, inquiry could be made which would lead to further investigation after prima facie material is found.
Page 11 of 17C/SCA/6092/2007 JUDGMENT
13. The charge sheet is filed and the person is arraigned as an accused. Therefore, it is at this stage the person can make a grievance that the charge sheet or papers of charge sheet are not supplied. In such circumstances a person can resort to appropriate remedy as provided under the code of criminal Procedure. The code of criminal Procedure is a complete code where the procedure has been laid down with regard to the safe guard of the person who is accused of any offence and which protect the right of such person while empowering the authority for investigation. Therefore, the petitioner seems to have filed the present petition on assumption about the process, inquiry or investigation as it is illegal and therefore, he claims that when he was called for such inquiry it was illegal interrogation cannot be coupled with the fact that he has claimed that he has been branded as a terrorist even though no FIR is filed against him or a case registered nor there is any further action. Therefore, the averments and allegations about the so called clandestine investigation branding the petitioner as a terrorist have been used only as and by way of abuse of process of the Court and such contention, which are sought to be raised, has no legs to stand. If such bare words are accepted at the Page 12 of 17 C/SCA/6092/2007 JUDGMENT face value then it would amount to interfering with the investigation or the discharge of the duty of the concerned authorities who are lawfully required and oblidged to carryout their duty. Therefore, such bare words which are figment of imagination about the violation of rights without there being any basis or foundation for such allegations, cannot be accepted.
14. The submission made by Shri Mehta, learned Senior Counsel, relying upon the judgment of the Hon'ble Apex Court Lalita Kumari Vs Government of Uttar Pradesh and Ors.(supra), has no merit. As could be seen from the head note of the judgment, it has reference to the Code of Criminal Procedure and the various stage provide for the registration of the FIR and the investigation. The emphasis or the focus is on the registration of the FIR. It is in this context the observations have been made which cannot be plugged in out of context in the present petition suitably. In this very judgment referring the Code of Criminal Procedure and particularly the Section 154 it has been discussed about the role and duty of the police and it has been discussed as to how the FIR is registered setting the criminal process in motion. It may be noted that the emphasis is on the fact that the petitioner has been called for Page 13 of 17 C/SCA/6092/2007 JUDGMENT interrogation and therefore, it is contended that without any reasonable or credible information when the person is called, no cognisance could have been taken when registration of the FIR the petitioner could not have been called. Again a long list of the cases including the judgment of the Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal, 1992 Supp (1) 335, till the other judgments including the judgment of the Hon'ble Apex Court has dealt with the aspect about the cognisance offence and steps which are required to be taken. However, it has been observed that the police officer may prima facie examine the correctness of the averments or the statement in the complaint as to whether such information is credible information requiring registration of the FIR. It is in this background when some inquiry is made for which the petitioner is called when his name is figuring in the complaint, it is only when for verification of the credibility or veracity of such allegations in the complaint. This itself would on the contrary suggest that the police authority, the respondents herein have been careful and have not proceeded to register the FIR straightway for serious alleged offence against the petitioner or any other person. Therefore, the respondent have acted in a judicious, balanced Page 14 of 17 C/SCA/6092/2007 JUDGMENT way while discharging their duty which cannot be said to been illegal, arbitrary and or malafide as sought to be canvassed.
15. It is in this background and discussion made herein above whether the exercise of discretion under Article 226 could be justified. As rightly submitted when the Code of Criminal Procedure is a complete code providing for a mechanism and covering every stage right from setting in motion the criminal law inquiry/investigation and the court into the motion, there is no justification to entertain the present petition merely because of the allegations are made about illegal interrogation, high handedness, clandestine, investigation. There is no base or foundation for such conclusion and the court cannot accept such statement at the face value particularly when the Code of Criminal Procedure clearly provide for the necessary procedure if the petitioner is in grievance he could have taken up the matter by appropriate application before the competent court.
15.1 Another facet of the submissions regarding the compensation is misconceived. The issue of compensation would require the establishment and acceptance of the fact that harassment is caused and Page 15 of 17 C/SCA/6092/2007 JUDGMENT the interrogation or the steps taken by the respondent authority were arbitrary, illegal. This again would require examination of material and evidence and only on establishment of relevant issues when the person like the petitioner establishes the harassment he could make a claim for compensation. Therefore, in exercise of discretionary jurisdiction under Article 226 when the issues involved require detailed examination and scrutiny of material and evidence it cannot be considered in such petition under Article 226 of the Constitution of India cannot be entertained. Before the petitioner can claim the compensation, he has to establish the necessary requirement or the ingredients of the harassment, malafide and it is only when the finding is arrived at it may justify the award of compensation in a given case. Therefore, there is no justification to jump to such conclusion of exercise of discretionary jurisdiction under Article 226. At the cost of repetition, it is required to be stated that judgment of the Apex Court Lalita Kumari (supra) would not be applicable to the facts of the case and the averments and the observations have to be read in the background and the context of facts.
16. In the facts and circumstances the present petition cannot be entertained and deserves to be Page 16 of 17 C/SCA/6092/2007 JUDGMENT dismissed and accordingly stands dismissed. Rule is discharged. No costs.
(RAJESH H.SHUKLA, J) MARY Page 17 of 17