IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.10

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.10
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.10.2009
C O R A M:
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
and
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
W.P.Nos.3335, 3703, 3704, 3705 and 3910/2009 and
Connected M.Ps. and M.P.S.Rs.
&
Crl.O.P.Nos.4085, 4287 and 4434/2009
W.P.No.3335 of 2009
(Suo Motu Taken up (PIL) WP)
1. The Chief Secretary to
the Government of Tamil Nadu
Fort Saint George, Chennai – 9
2. The Home Secretary to Government,
Fort Saint George, Chennai – 9
3. The Director General of Police,
Chennai – 4
4. The Commissioner of Police,
Greater Chennai, Chennai – 8.
5. The Secretary,
Union of India,
Department of Personnel and Training,
New Delhi – 1
6. The Director,
Central Bureau of Investigation,
Shastri Bhavan, Chennai.
7. The Registrar General,
High Court, Madras.
2
8. The Advocate General,
High Court, Madras.
9. The Additional Solicitor General of India.
High Court, Madras.
10.The Secretary,
Bar Council of Tamil Nadu & Pondicherry,
High Court Buildings, Madras.
11.The Secretary,
Madras Bar Association,
High Court, Madras.
12.The Secretary,
Madras High Court Advocates Association,
High Court, Madras.
13.The Secretary,
Women Lawyers Association,
High Court, Madras.
14.The Secretary,
Law Association,
High Court, Madras.
15.The Secretary,
Tamil Nadu Advocates Association,
High Court, Madras.
W.P.No.3703 of 2009
Women Lawyers' Association
rep. By Ms.V.Nalini, Secretary,
High Court Building,
Chennai – 600 104.
1. Government of Tamil Nadu,
rep. By Secretary, Home Dept.
Secretariat, Fort St. George,
Chennai – 600 009.
2. The Director General of Police,
Office of the DGP,
Kamarajar Salai,
Chennai – 600 004.
Vs.
... Petitioner
3
3. The Inspector of Police,
B-2 Esplanade Police Station,
Chennai – 600 104.
... Respondents
W.P.No.3704 of 2009
M.Velmurugan
Secretary, Madras High Court Advocate Association,
High Court buildings, Madras- 600 104.
... Petitioner
Vs.
1. The State of Tamil Nadu
Rep. by its Secretary,
Home Department,
Fort St. George, Madras – 600 009.
2. The Commissioner of Police,
Egmore, Chennai – 600 008.
3. The Director General of Police,
Kamaraj Salai,
Madras – 5.
4. The Joint Commissioner of Police,
North Chennai, Madras.
5. The Addl. Commissioner of Police,
Rajaji Salai, Madras – 8
6. The Assistant Commissioner of Police,
North Madras, Rajaji Salai, Madras – 1
7. K.P. Jain, IPS,
Office of the Director General of Police,
Kamaraj Salai,
Madras – 5.
8. K. Radhakrishnan, IPS
Office of the Commissioner of Police,
Egmore, Chennai – 600 008.
9. Ramasubramaniam, IPS
The Joint Commissioner of Police,
North Chennai, Madras.
10.A.K.Vishwanathan,
Office of the Addl. Commissioner of Police,
North, Madras – 600 001.
... Respondents
4
W.P.No.3705 of 2009
The Madras High Court Advocates Association
represented by its President
Mr.R.C. Paul Kangaraj
High Court Buildings,
Chennai – 600 104.
Vs.
1. The Union of India,
Rep. by its Secretary to Government,
Ministry of Home Affairs,
New Delhi.
2. The State of Tamil Nadu
Rep. By its Chief Secretary,
Fort St. George, Chennai – 600 009.
3. Secretary to Government,
Home, Excise & Prohibition Department,
Government of Tamil Nadu,
Fort St. George, Chennai – 600 009.
4. Ms. S.Malathi,
Principal Secretary to Government,
Home, Excise & Prohibition Department,
Fort St. George, Chennai – 600 009.
5. The Director General of Police,
Office of the Director General of Police,
Kamaraj Salai, Chennai – 600 005.
6. Mr.K.P.Jain,
Director General of Police,
Kamaraj Salai, Chennai – 600 005.
7. The Commissioner of Police,
Office of the Commissioner of Police,
Egmore, Chennai – 600 008.
8. Mr.K.Radhakrishnan
Commissioner of Police, Chennai City,
Egmore, Chennai – 600 008.
9. Mr.T.Rajendran,
Additional Director General of Police,
(Law and Order)
Chennai – 600 005.
... Petitioner
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10.Mr.A.K.Viswanathan
Additional Commissioner of Police,
Chennai – 600 009.
11.J.Ramasubramani
Joint Commissioner of Police (Chennai North),
Presently DIG, Coimbatore Range. Coimbatore.
12.The Registrar General,
High Court, Madras.
13.The Central Bureau of Investigation,
Represented by its Director,
New Delhi.
W.P.No.3910 of 2009
The Tamil Nadu Advocate's Association,
rep. by its Joint Secretary,
No.196, New Addl. Law Chambers,
High Court, Chennai – 600 104
Vs.
1.The Chief Secretary,
State of Tamil Nadu,
Secretariat, Fort St. George, Chennai – 600 009.
2.The Director General of Police,
Kamarajar Salai, Chennai
3.R.Radhakrishnan,
Commissioner of Police, Chennai
O/o, The Commissioner of Police,
Egmore, Chennai - 600 008.
4.Anup Jaiswal,
Additional Director General of Police, (Intelligence)
O/o. The Director General of Police,
Mylapore, Chennai – 600 004.
5.K.Viswanathan,
Additional Commissioner of Police, Chennai.
O/o. The Commissioner of Police,
Egmore, Chennai – 600 008.
6.T.Rajendran,
Additional Commissioner of Police, Chennai
O/o. The Commissioner of Police,
Egmore, Chennai – 600 008.
... Respondents
... Petitioner
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7.Sunil Kumar,
Additional Commissioner of Police, (Traffic) Chennai.
O/o. The Commissioner of Police,
Egmore, Chennai – 600 008.
8.Ramasubramaniam,
Joint Commissioner of Police, (North Chennai)
O/o. The Commissioner of Police,
Egmore, Chennai – 600 008.
9.Sandeep Roy Rathode,
Joint Commissioner of Police, (Central Chennai)
O/o. The Commissioner of Police,
Egmore, Chennai – 600 008.
10.Gunaseelan,
Joint Commissioner of Police, (Central Chennai)
O/o. The Commissioner of Police,
Egmore, Chennai – 600 008.
11.M.C.Sarangan,
Deputy Commissioner of Police,
Kilpauk District,
G-3, Kilpauk Police Station Campus, Chennai.
12.Prem Anand Sinha,
Deputy Commissioner of Police,
Flower Bazaar District,
B-1, North Beach Police Station Campus, Chennai.
13.Paneerselvam,
Deputy Commissioner of Police,
Pulainthope District.
P-2, Otteri Police Station Campus, Chennai.
14.T.S.Anbu,
Deputy Commissioner of Police,
Anna Nagar District,
K-4, Anna Nagar Police Station Campus, Chennai
15.Sridar,
Deputy Commissioner of Police,
Adyar District, J-2, Adyar Police Station Campus,
Chennai.
16.Joshi Nirmal Kumar,
Deputy Commissioner of Police, (Traffic South) Chennai.
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17.Thirugnanam,
Deputy Commissioner of Police, (Traffic North)
G-3, Kilpauk Police Station Campus,
Chennai.
CRL.OP.No.4085 of 2009
S.Doraisamy,
Advocate, No. 223, N.S.C.Bose Road,
Y.M.C.A.Building, 2nd Floor,
Chennai – 600 001.
Vs.
... Respondents
... Petitioner
1. The Deputy Superintendent of Police,
Central Bureau of Investigation,
Rajaji Bhavan, Chennai.
2. State: Inspector of Police,
B-2, Police Station,
Esplanade, Chennai – 104.
... Respondents
CRL.OP.No.4287 of 2009
Mr.S.Sivakumar
Vs.
... Petitioner
1. The State of Tamil Nadu,
rep. by Inspector of Police,
High Court Police Station,
now closed and functioning at
West Side Gate Entrance of the High Court of Madras
i.e. B.2 Esplanade Police Station, Chennai – 600 104.
2. The Union of India,
rep. by its Chief Investigating Officer and
Superintendent of Police,
Central Bureau of Investigation
(Special Investigation Team)
C. Wing A. Block. III Floor,
SCB Annx, Rajaji Bhawan
Besant Nagar, Chennai – 600 090.
... Respondents
CRL.OP.No.4434 of 2009
JB Solomon Peter Kamaladoss
The Inspector of Police,
B2-Esplanade Police Station,
Chennai-600 001.
Vs.
... Petitioner
... Respondents
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PRAYER IN W.P.No.3703 of 2009: Writ Petition filed under Article
226 of Constitution of India praying to issue Writ of Mandamus to take
legal measures to adjudicate and take further action regarding the
violence and incidents that took place on 19.02.2009 and consequently
take criminal action by registering FIR against all the police personnel
who were deployed for the said purpose and compensate for the
damages to life and property of the lawyers and other persons inside
the court campus and grant such other reliefs.
PRAYER IN W.P.No.3704 of 2009: Writ Petition filed under Article
226 of Constitution of India praying to issue Writ of Mandamus to
direct
the
1st
respondent
to
initiate
penal
action
against
the
respondents 7 to 10 and the Swift Action Force under the provisions of
Unlawful Activities (prevention) Act, 1967, as amended by Act 35 of
2008, and further recover the damage done to properties of the State
and the public from them by appointing an assessor/ Valuer.
PRAYER IN W.P.No.3705 of 2009: Writ Petition filed under Article
226 of Constitution of India praying to issue Writ of Mandamus to
direct the respondents 2 and 3 immediately initiate appropriate
proceedings, both criminal and disciplinary against respondents 6, 811 and their subordinates concerned who had a role to play in the
police atrocities within and in proximity to the High Court premises on
19.02.2009, direct investigation and prosecution by the Central Bureau
of Investigation, the 13th respondent herein in regard to the said
incidents, direct payment of Rs.5,00,000/- as compensation to each
victim of police brutality, compensation for damage and loss to
property, both public and private.
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PRAYER IN W.P.NO.3910 of 2009: Writ Petition filed under Article
226 of Constitution of India praying to issue Writ of Mandamus to
direct the 2nd respondent to furnish a list of police officers and
subordinate police personnel who had indulged in unleashing terror
inside the High Court campus on 19.02.2009 to this Hon'ble Court at
the earliest point of time as may be fixed by this Hon'ble Court,
pending disposal of the above Writ Petition.
PRAYER IN CRL.OP.No.4085 of 2009: Criminal Original Petition
filed under Section 482 of Cr.P.C praying to register a case on the
complaint given by the Petitioner dated 21.02.2009 on the file of the
2nd respondent and to arrest all the accused and proceed with the
investigation according to law.
PRAYER IN CRL.OP.No.4287 of 2009: Criminal Original Petition
filed under Section 482 of Cr.P.C to issue (a)
complaint of the Petitioner dated
direction to register the
14.03.2009 by the first respondent
to register a case and record his evidence/statement of the attack
against him and further; (b) To Conduct fresh enquiry by the second
respondent with the petitioner to record his statement in connection
with the attack on him on 19.02.2009 with the narrated the facts and
other circumstances of the case.
PRAYER IN CRL.OP.No.4434 of 2009: Criminal Original Petition
filed under Sec.482 Cr.P.C. praying to direct the Respondent to
register a FIR on the basis of the Petitioner's complaint dated
19.2.2009.
*****
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Counsel appeared for the Petitioners :
1. Mr.R.Krishnamurthy, Senior Counsel
2. Mr.T.V.Ramanujam, Senior Counsel
3. Mr.S.Prabhakaran
4. Mr.R.C.Paulkanagaraj,
5. Ms.R.Vaigai
6. Mr.V.Raghavachari
7. Mr.V.Elangovan
8. M.S.Sivakumar
9. Dr.G.Krishnamurthy
10. Mr.R.Kaaruppan,
11. Mr.R.Sankarasubbu,
Counsel appeared for the Respondents :
1. Dr.Rajeev Dhavan Senior Counsel Assisted by Mr.J.Raja Kalifulla
Government Pleader for all Police Officials in Official Rank and Personal
Capacity except Mr.A.K.Viswanathan, Mr.Sandeep Rai Rathore and
Mr.J.Ramasubramani.
2. Mr.P.S.Raman, Advocate General Assisted by Mr.M.Dhandapani
Special Government Pleader for Chief Secretary, Home Secretary to
Government of Tamil Nadu and Director General of Police.
3. Mr.M.Ravindran Additional Solicitor General of India Assisted by
Mr.P.Chandrasekaran SCGSC for Union of India
4. Mr.N.Chandrasekar, Special Public Prosecutor for CBI
5. Mr.I.Subramaniam Senior Counsel Assisted by Mr.P.N.Swaminathan
for Mr.Sandeep Rai Rathore.
6. Mr.V.Selvaraj for Mr.A.K.Viswanathan
7. Mr.P.N.Prakash for Mr.J.Ramasubramani
8.
Mr.R.Muthukumaraswamy
Senior
Counsel
Assisted
Mr.A.Jenasenan for Registrar General, High Court, Madras.
*****
by
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COMMON
ORDER
F.M.IBRAHIM KALIFULLA, J.
1. I have had the advantage of perusing the order of
Mrs.Justice R.Banumathi, who has dealt with the issue involved in
these writ petitions in depth, covering every one of the issues
raised, contentions made and authorities cited in support of such
contentions. I fully concur with every one of the reasoning and
conclusions of the illuminating order of the learned Judge.
However, I on my part, wish to add my own reasoning and
conclusions for our ultimate directions contained in paragraph
Nos.602 to 607 of this order.
2. Broad spectrum of this public interest litigation and the
connected writ petitions as well as other criminal original
petitions concerns the State police, lawyers and the Court.
3. The facts which led to the initiation of the suo motu
public interest litigation by this Court are that the members of
the Bar went on an indefinite boycott of Courts on and from
29.01.2009, alleging that the Government was not taking any
action to stop the genocide of Tamils in Sri Lanka. As part of
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their agitation, some lawyers entered the First Court presided
over by the Hon’ble Acting Chief Justice where some of the
lawyers who were attending to their cases were asked to join the
boycott. One learned senior counsel by name Mr.A.E.Chellaiah
and his wife advocate Mrs.Vasanthi, were stated to have been
abused by the agitating lawyers. The boycott, which commenced
on 29.01.2009, continued and was gaining momentum. Several
other incidents as part of agitation of the lawyers was also
reported on various dates.
4. On 17.02.2009, Dr.Subramaniam Swamy as party-inperson stated to have appeared before the Bench presided over
by
Hon’ble
Mr.Justice
P.K.Misra
and
Hon’ble
Mr.Justice
K.Chandru, for getting himself impleaded in a case related to a
temple situated at Chidambaram. Around 11.45 a.m. some of the
agitating lawyers stated to have entered the Court Hall of Hon’ble
Mr.Justice P.K.Misra Bench and apart from abusing and assaulting
Dr.Subramaniam Swamy, stated to have thrown eggs at him,
under the direct gaze of the Hon’ble Judges. In fact the Judges
frowned upon the misbehaviour of all those lawyers and recorded
the same in their order dated 17.02.2009. A copy of which was
forwarded to the Hon’ble Acting Chief Justice for appropriate
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action and the Registry was also directed to send a copy of the
said order to the Hon’ble Chief Justice of India.
5.
The
then
Commissioner
of
Police
addressed
a
communication dated 17.02.2009, to the Registrar General
pointing out the unsavory incident that took place in Court Hall
No.3 and sought for the concurrence to register a criminal case
and set the criminal law in motion against those advocates. The
Registrar
General
by
a
communication
dated
18.02.2009,
informed the Commissioner of Police that it is for the police to
register any criminal case on its own and the concurrence of the
Registry is not required in law.
6. The case which was posted on 17.02.2009, before the
3rd
Court was adjourned to 19.02.2009.
On 18.02.2009,
according to the Commissioner of Police, there was a meeting
convened by the Hon’ble Acting Chief Justice in his Chamber, that
the Hon’ble Acting Chief Justice while deploring the incident of
17.02.2009, told the police to be firm in taking action against the
erring advocates.
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7. On 19.02.2009, according to the Commissioner of Police,
there was a specific intelligence input from the Intelligence
Section of the City Police and the State Special Branch CID that
the advocates who were involved in the incident on 17.02.2009,
in the 3rd Court Hall would create serious problems when
Dr.Subramaniam Swamy was scheduled to visit the High Court in
connection with a matter before the Hon’ble Acting Chief Justice
and in the 21st Court.
8. On 19.02.2009, the Commissioner of Police arranged for
a heavy police guard in the High Court campus in order to ensure
that no untoward incident takes place at the time of the visit of
Dr.Subramaniam Swamy.
Dr.Subramaniam Swamy stated to
have appeared before the Court presided over by the Hon’ble
Acting Chief Justice as well as the 21st Court and left the High
Court campus around 11.30 am.
9. The heavy police guard under the leadership of the
jurisdictional Joint Commissioner of Police Mr.M.Ramasubramani
was stated to have been withdrawn from the High Court campus
to B-2 Police Station situated outside the High Court campus for
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debriefing by around 11.30 am. While so, according to the police
around 12.00 noon M/s.Vijendran and Kunaraja, Advocates came
to B-2 Police Station and asked for the list of accused advocates
involved in the incident dated 17.02.2009, and stated that they
wanted to surrender themselves.
10. According to the jurisdictional Joint Commissioner of
Police who dealt with the said claim of surrender would state that
two of the advocates namely Mr.Vijendran and Mr.Kunaraja
approached him in B-2 Police Station and stated that they would
surrender the advocates before the police immediately. The Joint
Commissioner of Police would state that those advocates wanted
the list of accused, that though one of the advocates namely
Mr.Vijendran also figured as an accused was to be arrested, since
Mr.Vijendran promised to bring all the accused positively for
surrender, he decided not to arrest him in a haste and asked his
officers to give him time to keep up his promise.
11. According to the Joint Commissioner of Police, the
debriefing of the police force was withdrawn awaiting the
surrender of wanted accused advocates. Therefore, the police
force which was withdrawn from the High Court campus at 11.30
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a.m. was stated to have been made to wait till 2.00 p.m. It is
stated
that
Mr.Karuppan,
another
advocate
led
Messers
Rajnikanth, Vijendran, Pughazhendi and Jayakumar along with
large number of advocates to B-4 Police Station located inside
the High Court campus and represented that the advocates who
were accused in the 17.02.2009 incident wanted to surrender. It
is also stated that when the police wanted to take them into
custody, Mr.Karuppan supported by other advocates insisted
registration of a case against Dr.Subramaniam Swamy as a
precondition
for
their
surrender.
The
jurisdictional
Joint
Commissioner of Police who was waiting in B-2 Police Station is
stated to have rushed to B-4 Police Station along with the entire
strength of police force which was kept in wait in B-2 Police
Station.
12.
The
complaint
which
was
registered
against
Dr.Subramaniam Swamy was stated to have been made under
the Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act.
The said complaint was stated to have been
received by the jurisdictional Deputy Commissioner of Police
(Flower Bazaar) Mr.Prem Anand Sinha, who in turn directed the
Inspector of Police Mr.Sethuraman of B-4 Police Station to
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register a case. A case was stated to have been registered in
Crime No.14 of 2009, under Section 3(1)(x) of the Scheduled
Caste and Scheduled Tribes (Prevention of Atrocities) Act read
with Section 506(ii) IPC against Dr.Subramaniam Swamy.
A
copy of the FIR in Crime No.14 of 2009 was also stated to have
been handed over to the advocates who thereafter wanted the
arrest of Dr.Subramaniam Swamy and also refused to surrender.
13. It is the case of the jurisdictional Joint Commissioner of
Police that though tension was mounting since the accused
advocates involved in 17.02.2009 incident made themselves
available before him in the presence of the media, his position
was precarious as he would not only be accused of dereliction of
duty for not arresting them but also invite criticism from all
quarters.
According to him, he apprehended few advocates
involved in the 17.02.2009 incident and certain others who were
obstructing the police from taking them into the police van, that
it was at that point of time, the crowd became restive and started
shouting at the police in filthy language and that a chappal was
thrown at them apart from throwing stones.
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14. The time was stated to have been 4.00 pm and though
the advocates stated that after the arrest all the police need not
remain in the premises and they can leave the premises, the
policemen who were excited by the throwing of stones by the
advocates were standing in a formation near B-4 Police Station
which
ultimately
necessitated
the
jurisdictional
Deputy
Commissioner of Police Mr.Prem Anand Sinha to declare the
assembly as unlawful and ordered lathi charge after consulting
the senior officers including the jurisdictional Joint Commissioner
of Police. After brief chase, the police force was stated to have
been withdrawn to
B-4 Police Station
and thereafter the
advocates were stated to have gathered near the Family Court
and started pelting stones. It was at that point of time Hon’ble
Mr. Justice A.C.Arumugaperumal Adityan was stated to have
intervened to pacify the mob but was also stated to have been
assaulted by the police. The learned Judge was stated to have
been shifted to an ambulance for treatment, that thereafter as
per the instructions of the Commissioner of Police the entire
police were withdrawn from the B-4 Police Station to B-2 Police
Station. Thereafter, according to the police, the advocates set
fire to the B-4 Police Station and they also prevented the fire
service personnel from putting out the fire by pelting stones and
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a lathi charge was ordered to bring the situation under control. It
was around 5.35 pm the B-4 Police Station was stated to have
been ransacked.
15. Be that as it may a reference to the order of the Full
Bench dated 19.02.2009, discloses that when the Court was in
session, at about 3.30 to 3.45 pm., on hearing unusual noise,
when enquiries were made, the Court was informed that large
number of special police (Riot Police) personnel with lathis or
guns have entered the Court premises and were pelting stones on
the lawyers apart from making lathi charge. The vehicles parked
inside the Court campus were stated to have been smashed in
the process. The Hon’ble Acting Chief Justice was stated to have
immediately contacted the Commissioner of Police and the Chief
Secretary over phone and directed them to remove the police
force immediately from the High Court campus in as much as it
entered without the permission of the Court or the Acting Chief
Justice. Many of the learned Judges who also raised from the
Court stated to have witnessed the gory incident. The Court was
also informed about the assault on the Hon’ble Mr. Justice
A.C.Arumugaperumal Adityan.
The order also states that the
police were found chasing the persons inside the Court Halls and
20
lathi charged the lawyers, staff and others. The situation was
stated to have been beyond control and that the police force did
not go out of the campus while the Commissioner of Police
telephonically informed that he is in the Police Station and trying
to get the police out of the campus. Subsequently, though the
Commissioner of Police informed the Court that the police
personnel have been removed from the campus, they were
chasing the advocates who were coming outside the Court
campus by beating them mercilessly. At about 5.30–5.45 pm it
is stated that the Court learnt the police force had gone outside
the campus. At that point of time, B-4 Police Station was stated
to have been set on fire and on a query, the Commissioner of
Police alleged that the advocates set fire to the Police Station
while many of the lady lawyers present in the Court Hall and
others informed that the police themselves set fire to the Police
Station and were throwing the blame on the lawyers.
16. The Court summoned the Chief Secretary, Home
Secretary, Director General of Police, Commissioner of Police as
well as some other officers and in the presence of number of
lawyers, the Full Bench passed its order at about 6.40 pm in the
presence of the Government Pleader, who also stated to have
21
witnessed the incident. The Chief Secretary, Home Secretary,
Director General of Police and the Commissioner of Police gave
their statement with the following undertakings:
“2…….(i) The Commissioner of Police,
Chennai, stated that some of the injured
lawyers have been taken for treatment, but
no arrest has been made.
(ii) The Home Secretary states that no
lawyer will be taken in custody in connection
with today’s incidents.
After proper police
investigation and after informing the matter
to the Hon’ble The Chief Justice (Acting Chief
Justice for the present), if necessary, in
future, they may proceed in accordance with
law.
Further undertaking is given that if any
person, including the lawyers, staff of the
High Court or Subordinate Court or any officer
of the Court or the litigant, whoever were
present inside the Court or outside N.S.C.Bose
Road, Thambu Chetty Street, Armenian Street
and nearby roads, if taken in custody, they
will be released immediately today.
It is further undertaken that those who have
been arrested today or had to surrender
22
before the police in connection with the earlier
FIR today, they will be released on personal
bond to ensure that normalcy returns in the
High Court.
(iii) So far as the question of enquiry and
FIR
lodges
and
investigation
of
today’s
incidents is concerned, on behalf of the State,
the Chief Secretary to Government assured
that the matter will be referred to the Central
Government for enquiry and investigation by
the Central Bureau of Investigation.
(iv)
The
Chief
Secretary
and
Home
Secretary have also undertaken to treat all
the persons injured in connection with today’s
incident and they will be treated free of cost
at the expense of the State.”
17. The said officers along with the Union of India, Director
of Central Bureau of Investigation and the Registrar General of
the High Court were treated as party respondents in the suo
motu writ petition in public interest and in the interest of the
institution viz., the High Court and the Subordinate Courts. The
respondents were directed to adhere to the undertakings and
failing which it was made clear that it would be treated as
23
violation of the Court’s order.
The State Government was
directed to refer the matter along with a copy of the order dated
19.02.2009, to the Secretary to Government, Department of
Personnel and Training, Government of India, New Delhi, who in
turn was to take up the matter to the Director of Central Bureau
of Investigation for action in terms of the undertaking as well as
the directions issued. The Assistant Solicitor General of India
was present in the Court and accepted notice on behalf of the
Union of India and Central Bureau of Investigation.
18. Simultaneously three teams were constituted consisting
of officers of the Registry, Government Pleader and Advocates to
inspect the whole campus and take videograph that day itself to
note down the damages caused to the building, vehicles and
other properties. The Chief Secretary, Home Secretary, Director
General of Police and the Commissioner of Police were directed to
inform the content of the order to all concerned without waiting
for a copy through electronic media and print media (television
and newspaper). Since the Court was seized of the issue, it was
stated that the members of the various lawyers association were
asked to restore normalcy within the Court campus.
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19. Though the case was directed to be posted on
02.03.2009, the Full Bench met again on 21.02.2009 and passed
further orders. In the said order, the Full Bench which met in the
residence of the Hon’ble Acting Chief Justice, directed the then
Commissioner of Police and jurisdictional Joint Commissioner of
Police to file a report and state as to under whose authority of
the High Court, they entered the High Court premises to arrest
certain accused in the campus and at whose instance the order
was issued for lathi charge by the police and swift action force.
They were also directed to give specific names with designation
of the officers and constables at whose instance such action was
taken. The initiation of suo motu contempt was decided to wait
till such report is submitted to the Court. Though Ms.R.Vaigai
appeared before the Full Bench for initiation of contempt
proceedings, she was directed to file the said petition in the
Registry.
20. On 02.03.2009, the Full Bench met again and after
noting that the case registered by the CBI was not as per the
orders of the Full Bench dated 19.02.2009, but was one
registered as Crime No.15 of 2009 under Sections 147, 353, 332,
450, 436 & 307, IPC r/w Section 3(1) of the Tamil Nadu
25
Properties (Prevention of Damages and Loss) Act, 1992 based on
a complaint made by Sub Inspector of Police of B-4 Police
Station, which was taken on record as a case to be forwarded to
the CBI, while in the said Crime No.15 of 2009, there was no
reference to the Court order dated 19.02.2009 and the facts
mentioned therein including the timings. The Court made it clear
that the respondents/authorities of the State had violated the
Court order dated 19.02.2009, by not registering a case as per
its order dated 19.02.2009 and the CBI was not asked to
investigate the matter as per the said order dated 19.02.2009. It
was specifically directed that the respondents/State authorities
and Union of India should pass appropriate orders on the basis of
the FIR received by them at 6.40 pm pursuant to the Court’s
order
dated
19.02.2009
and
any
other
information
given
subsequently or at about 19.20 hours (7.20 pm) cannot be
treated to be a case registered pursuant to the Court’s order.
The respective Bar associations were also included as proforma
respondents.
21. In the meantime, while the proceedings were being held
by the Full Bench in the aforesaid manner, certain writ petitions
were moved before the Hon’ble Supreme Court under Article 32
26
of the Constitution of India, which were taken up on file and was
heard by the Hon’ble Supreme Court on 25.02.2009 and
26.02.2009 and the Hon’ble Supreme Court by an order dated
26.02.2009, appointed One Man Committee headed by Hon’ble
Mr.Justice B.N.Srikrishna, former Judge of the Supreme Court to
enquire into the incident which happened on 19.02.2009. The
Committee was to initially consider whether any immediate action
is called for against the police officers who allegedly allowed
armed policemen to enter the premises of the High Court without
permission of the Acting Chief Justice and file an interim report.
22. In the meantime the jurisdictional Joint Commissioner
of Police and the Deputy Commissioner of Police along with two
other Deputy Commissioners were transferred from the Madras
city, which was noted by the Hon’ble Supreme Court in its order
dated 26.02.2009.
23. The Hon’ble Supreme Court directed the Committee
appointed by the High Court to assess the medical facilities
provided
to
the
injured
advocates
as
well
as
reasonable
compensation for the injured apart from the damages caused to
the vehicles and other properties of the High Court as well as the
27
lawyers associations.
The State Government was directed to
deposit a sum of Rs.25,00,000/- in the first instance at the
disposal of the Committee for immediate relief. The advocates
were directed not to cause any disturbance of the Court
proceedings and not to shout slogans in the Court premises and
that no meeting should be held in the High Court premises
without the permission of the Acting Chief Justice.
24. After 26.02.2009 order, the Hon’ble Supreme Court
passed
further
14.07.2009.
In
orders
the
on
order
03.03.2009,
dated
06.03.2009
06.03.2009,
the
and
Hon’ble
Supreme Court forwarded the interim report of the Committee
headed
by
Hon’ble
Mr.Justice
B.N.Srikrishna
to
the
State
Government as well as to the Acting Chief Justice for appropriate
action, if any. The Hon’ble Supreme Court also held that since
the three Judge Bench was already seized of the matter regarding
the incident happened in the High Court premises, suggestion to
appoint a Judicial Commission was also allowed to be decided by
the same Bench.
25. Subsequently, on 18.03.2009, the Full Bench passed
orders holding as under:
“8. As we find that a prima facie case made
28
out to initiate disciplinary proceeding against
the concerned officers, to ensure the State
Government to pass appropriate orders, we
are of the view that (i) Mr.A.K.Viswanathan,
IPS, Addl. Commissioner of Police (Law &
Order) and (ii) Mr.M.Ramasubramani, IPS,
formerly
Joint
Commissioner
of
Police
(North) (Jurisdiction JCP), should be placed
under suspension, as they were the persons
who were in the helm of the affairs and
under whose direct supervision the operation
was carried on.”
26. Aggrieved against the order of the Full Bench dated
18.03.2009, the two police officers approached the Hon’ble
Supreme Court by filing Special Leave Petition (Civil) No.7540 of
2009. The Hon’ble Supreme Court taking note of the fact that
those officers were not heard before the Full Bench passed its
order dated 18.03.2009, the Hon’ble Supreme Court felt that
they should be given an opportunity of being heard by the High
Court. The Hon’ble Supreme Court specifically directed that the
Bench headed by the Chief Justice or any other Court can deal
with the matter and shall ensure fair hearing to the counsel
appearing for the SLP petitioners and other parties to the
dispute.
The learned counsel appearing for the lawyers also
29
submitted before the Hon’ble Supreme Court that till such time
the hearing is over, they will not proceed with their contempt
proceedings. The Hon’ble Supreme Court also noted that the
concerned officers were not working in the City of Chennai and
that they were working elsewhere.
27. It is in the above stated background, this Suo Motu
(Taken Up) W.P.(PIL) No.3335 of 2009, connected writ petitions
and other petitions were directed to be posed before us by the
Hon’ble the Chief Justice.
28. We commenced the hearing on 10.09.2009, and the
various leaders of the Bar viz., Mr.R.Krishnamurthy, representing
Madras Bar Association, Mr.R.C.Paul Kanagaraj and Ms.R.Vaigai,
representing
Madras
High
Court
Advocate
Association,
Mr.S.Prabhakaran, representing Tamil Nadu Advocate Association
Mr.T.V.Krishnakumar
representing
Law
Association
and
Ms.D.Prasanna representing Women Lawyers Association and
Messers
N.G.R.Prasad,
R.Karuppan,
V.Ragavachari
and
T.V.Ramanujam as members of the Bar made their submissions
while Mr.V.Selvaraj appeared for the Additional Commissioner of
Police Mr.A.K.Viswanathan, Mr.P.N.Swaminathan, appeared for
30
the Joint Commissioner of Police (Central) Mr.Sandeep Rai
Rathore,
Mr.P.N.Prakash
appeared
for
Jurisdictional
Joint
Commissioner of Police Mr.M.Ramasubramani and for the rest of
the police officers including the Commissioner of Police, the
Government Pleader appeared who was represented by Dr.Rajeev
Dhavan, Senior Advocate and Mr.P.S.Raman, learned Advocate
General appeared for the State including the Chief Secretary,
Home Secretary and the Director General of Police.
29. Having heard the learned counsel for the various parties
we pass the following order.
30. In his submissions, Mr.S.Prabhakaran, learned counsel
contended that the attack on the lawyers on 19.02.2009, was a
preplanned and conspired one. He also contended that they did
not have the permission of the Registry on that day. According
to him while more than 100 advocates and staff were injured, no
policeman was seriously injured. He would state that while cases
were registered against the advocates, no case was registered
against any policemen who indulged in vandalism. By referring to
the
affidavits
of
Mr.A.K.Viswanathan
and
Mr.Sandeep
Rai
Rathore, the learned counsel contended that atleast those two
31
officers stated that they did not agree for lathi charge. The
learned counsel contended that lawyers assembling inside the
Court campus cannot be construed as an unlawful assembly. He
further contended that by virtue of the gory incident that took
place on 19.02.2009, the High Court did not function for several
days while the City Civil Court and the Court of Small Causes did
not function for one full week. The learned counsel stated that
the police apart from injuring the lawyers, staff members and a
sitting Judge of this Court also caused extensive damage to the
vehicles parked inside the Court campus, Court Building including
Judges Chamber, lawyers chamber and even a Judges' vehicle
was not spared. He pointed out that a Crech in the women
lawyers Association was also damaged by the police. The learned
counsel also contended that even if the advocates wanted to
surrender there was no necessity for the police to gather too
many policemen. He also submitted that the relevant provisions
of the Police Standing Orders (PSO) were not adhered to.
31.
Mr.R.C.Paul
submissions
contended
Kanagaraj,
that
the
learned
Court
counsel
proceedings
in
his
were
disrupted by the act of the police in the afternoon on 19.02.2009
and the High Court could resume work on 25.02.2009, while the
32
City Civil Court and the Court of Small Causes could resume work
only on 02.03.2009. The learned counsel therefore contended
that the act of the police fall within the definition of criminal
contempt under Section 2(c) of the Contempt of Courts Act and
therefore they are liable to be proceeded against under the said
provisions. The learned counsel contended that the Madras High
Court Advocate Association only wanted to support the cause of
Srilankan Tamils and not the banned organization LTTE. As far
as the various acts alleged to have been indulged in by the
lawyers, which was put against them, the learned counsel
contended that all those acts were not by the association but by
some individual lawyers for which separate cases have been filed
and the association has nothing to do with those incidents. He
also stated that those cases have to be individually proceeded
against those persons and the same cannot be put against the
lawyers to justify the incident that took place on 19.02.2009. He
also contended that the incident that took place on 17.02.2009
cannot be stated to be the root cause for the gory incident that
happened on 19.02.2009. The learned counsel contended that
the retention of the police inside the campus between 11.30 am
to 2.00 pm was unlawful for which they are liable to be
proceeded against. He further pointed out that none of the 15
33
lawyers taken into custody were the accused in the case
pertaining to the 17.02.2009 incident. According to the learned
counsel, the police failed to follow the prescribed procedure under
the Drill and Training Manual as well as the Police Standing
Orders. He also contended that the Commissioner of Police’s
failure to get the permission of the Court calls for serious action.
The police personnel should therefore be punished for the offence
committed by them jointly as well as individually.
32. Ms.R.Vaigai, learned counsel in her submissions stated
that the stand of the State Government does not show any
respite for what happened on 19.02.2009. By pointing out to
certain averments contained in the affidavit of the Home
Secretary to the effect that the Court did not give proper hearing
before passing the order dated 19.02.2009, the learned counsel
pointed out that in the very order, it was mentioned that the high
level officers namely the Chief Secretary, Home Secretary,
Director General of Police and the Commissioner of Police were
given an in camera audience before passing of the said order.
Commenting upon the stand of the Director General of Police, the
learned counsel contended that he failed to discharge his
responsibility by properly assessing the unsavory incident with
34
due responsibility. According to the learned counsel neither the
State nor the police have realized the enormity of what happened
and therefore in order to uphold the Majesty of Law, Court should
come for the rescue. The learned counsel pointed out that in the
CD produced by the police nothing was recorded in between 2.21
pm and 3.48 pm and still it was not known why the police
remained inside the campus and ultimately unleashed violence on
the advocates. The learned counsel submitted that various false
pleas made by the high level officers including the Home
Secretary and the Commissioner of Police are serious insult to the
Court which calls for serious action. The learned counsel pointed
out that the Commissioner of Police in his counter affidavit failed
to furnish the timings thereby wanted to wriggle out of the
situation by making slippery statements. The learned counsel
also submitted that going by the visuals in the CD which discloses
the
assault
on
A.C.Arumugaperumal
the
Hon’ble
Adityan,
at
Judge
which
viz.,
point
of
Mr.Justice
time
the
Commissioner of Police was very much present which was around
4.15 pm while according to him, he entered the Court premises
only at 5.00 pm. By referring to para 24 of the affidavit of the
Commissioner of Police dated 07.09.2009, the learned counsel
contended that if that was the perception of the Commissioner of
35
Police himself it was not known how he took the decision to allow
the surrender of advocates inside the campus. The learned
counsel contended that what had happened on 19.02.2009, to
the Court was loss of dignity and grace of the Court which can
never be erased. The learned counsel relied upon various
decisions of the Hon’ble Supreme Court and contended that even
in extraordinary situations permission of the Court was sought by
the Police and that therefore, the privileges that are available to
Parliament premises should be equally extended to the premises
of the Court.
The learned counsel contended that when
admittedly the Commissioner of Police anticipated huge trouble,
he should have taken the permission of the Acting Chief Justice
and his failure to do so was a deliberate attempt on his part to
unleash violence on the lawyers.
According to the learned
counsel, past events of the advocates cannot be telescoped to
justify the gory incident that took place inside the Court premises
on 19.02.2009. The lawyers are expected to be inside the Court
and the attempt of the police to disperse them under the guise of
unlawful assembly was a deliberate vengeantful action to teach a
lesson to the lawyers and that there was absolutely no
justification for the police to remain inside when there were no
activities after 2.41 pm till lathi charge was made at 3.58 pm. In
36
respect of the arrest of the lawyers also she contended that the
guidelines laid down by the Hon’ble Supreme Court in the
D.K.Basu case (1997 1 SCC 416) was not followed.
The
learned counsel therefore contended that serious action should be
taken against the police personnel by way of disciplinary action
as well as contempt proceedings. The learned counsel contended
that in the light of the serious nature of activities indulged in by
the police in order to have a fair enquiry suspension of the
concerned police officers is imminent apart from initiating
criminal contempt against them.
The learned counsel further
contended that the payment of compensation for the injured
lawyers was not adequate and atleast a sum of Rs.1,00,000/- to
lawyers who sustained major injuries and Rs.50,000/- for those
who sustained minor injuries should be ordered.
33.
Mr.R.Krishnamurthy,
learned
senior
counsel
representing the Madras Bar Association and the Women Lawyers
Association contended that after Dr.Subramaniam Swamy left the
Court premises at around 11.00 am, there was no reason why
the police remained inside the campus and that no valid reason
was disclosed by the police. The learned senior counsel pointed
out that when even in respect of a cognizable offence enough
37
discretion is given to the police officers for arresting a person, it
is not known why they ventured to arrest the lawyers who
wanted to surrender inside the Court campus and the said Act of
the police was stage managed in order to create a situation
where they can unleash violence on the Advocates.
34. Mr.T.V.Ramanujam, learned senior counsel contended
that by invoking Article 215 of the Constitution of India, this
Court
should
take
appropriate
action
against
the
erring
policemen. The learned senior counsel contended that it was not
an innocent attack on the lawyers.
35. Mr.V.Ragavachari, learned counsel contended that even
for taking into custody of 15 lawyers, the police ought to have
taken permission of the Registry especially when they anticipated
stout resistance from the lawyers.
36. Mr.R.Karuppan, learned counsel in his submissions
stated that it was he who led the lawyers to B-4 Police Station for
surrender and that the registration of the complaint against
Dr.Subramaniam Swamy was delayed upto 3.00 pm by the police
and that by that time all those lawyers who were connected with
38
the incident that took place on 17.02.2009, left him in the lurch
and that the police forcefully pushed into a van 15 innocent
lawyers who were standing near that place. The learned counsel
stated that when he was unable to surrender the lawyers as
promised to the police, he gave back the FIR to the police and
left that place. The learned counsel contended that the police
ought not to have drawn so many policemen without the
permission of the Acting Chief Justice. By referring to the Full
Bench order dated 21.02.2009, the learned counsel contended
that the said order made it clear that the Acting Chief Justice
never gave permission to the police to enter the premises and
therefore their presence was illegal. According to the learned
counsel since the police indulged in all acts of violence during
Court hours and disrupted the proceedings on 19.02.2009 and
subsequent days, it calls for serious action of criminal contempt
against the police.
37.
Mr.V.Selvaraj,
learned
counsel
appearing
for
the
Additional Commissioner of Police Mr.A.K.Viswanathan, at the
outset contended that two questions arise for consideration viz.,
(i) who brought the police inside and (ii) who ordered lathi
charge. He contended that the Commissioner of Police wants to
39
escape by shifting the blame on other junior officers.
According
to him, the Commissioner of Police misused the discussion that
took place on 18.02.2009, in the Chambers of the Acting Chief
Justice along with other officers. He also contended that it was
the Commissioner of Police who organized the police force in the
forenoon as well as the additional force in the afternoon. The
learned counsel pointed out that after Dr.Subramaniam Swamy
left at 11.30 am, the police force was shifted to B-2 Police Station
but it was brought back to B-4 Police Station at 2.00 pm at his
instance. He contended that the Additional Commissioner of
Police Mr.A.K.Viswanathan entered the High Court premises only
after 3.45 pm at the instance of the Commissioner of Police and
even according to the jurisdictional Joint Commissioner of Police,
the lathi charge was ordered only by the Deputy Commissioner of
Police Mr.Prem Anand Sinha. The learned counsel contended that
when according to the learned Advocate General that after the
lathi charge, he went to Ramachandra Hospital at 3.45 pm to
appraise the Hon’ble the Chief Minister about the incident, it can
be safely held that the first lathi charge commenced at 3.00 pm
and went up to 3.30 pm, while the Additional Commissioner of
Police entered the High Court premises only at 3.45 pm. The
learned counsel pointed out that while the Acting Chief Justice
40
tried to contact the Commissioner of Police from 3.30 pm
onwards to remove the police force from the High Court premises
even at 4.50 pm, the Commissioner of Police was arranging for
reinforcement of more police force.
The learned counsel by
referring to a call data furnished by the BSNL pointed out that the
Commissioner of Police was very much inside the High Court
premises at 16.27 hours i.e. 4.27 p.m. and that he alone was
controlling the force. He also referred to the complaint of the
Inspector of Police Jayakodi to point out that the Commissioner
of Police came to B-4 Police Station at 4.30 pm. The learned
counsel therefore contended that the Commissioner of Police took
charge from the Additional Commissioner of Police at 4.40 pm
inside the High Court premises and only thereafter the second
lathi charge took place.
38. Mr.P.N.Prakash, learned counsel appearing for the
jurisdictional Joint Commissioner of Police Mr.M.Ramasubramani,
at the outset stated that the said officer is extending his apology
openly and publicly without any qualms and that he is regretting
for the incident that happened on 19.02.2009.
The learned
counsel also stated that the jurisdictional Joint Commissioner
admitted his presence in the morning as well as in the afternoon,
41
that he mobilized the police force and that he takes the
responsibility. He however contended that he did everything in
good faith. He also contended that for an unlawful assembly
what was required is common object and the place is not the
determinative. The learned counsel pointed out that when there
was variation of things as regards the lathi charge and since the
whole complaint has been referred to the CBI, it should be left to
the CBI to investigate and one should not go by the order of the
Full Bench dated 19.02.2009.
39. Mr.P.N.Swaminathan appearing for Mr.Sandeep Rai
Rathore, Joint Commissioner of Police (Central) submitted that
the Joint Commissioner of Police proceeded to B-4 Police Station
as
directed
by
the
Additional
Commissioner
of
Police
on
19.02.2009 and that he was not commanding any one. He also
claims that he was not involved in any of the incident and that he
was also not consulted by any one. The Joint Commissioner of
Police in his affidavit however stated that after the arrest of the
advocates, the police ought not to have remained in the High
Court premises. He also tendered an unconditional apology for
what had happened inside the High Court premises.
42
40. Mr.P.S.Raman, the learned Advocate General appearing
for the State including the Chief Secretary, Home Secretary and
Director General of Police prefaced his submissions by stating
that he is addressing the Court in his position as a leader of the
Bar, as the Advocate General for the State, as well as, as an
yeoman party in the suo motu Public Interest Litigation. While
making his submissions, the learned Advocate General stated
that the State does not want to take sides and that if the Court
finds any one responsible
for the unsavory incident that
happened on 19.02.2009, the State will take appropriate action
against the concerned officer as directed by this Court. While
deploring about the recent trend that is prevailing amongst the
lawyers in resorting to boycott for all and sundry, the learned
Advocate General lamented that while carrying on a dignified
profession as lawyers such absenteeism from the Court by
lawyers, whatever be the reason, would cause serious prejudice
to the litigant public apart from causing hindrance to the course
of justice. It also to a very great extent results in degradation of
the lawyers’ profession in the eyes of the public at large. The
learned Advocate General with heavy heart submitted that time
has come where the Bar associations representing the lawyers
should seriously think about any other method by which they can
43
raise their protest instead of absenting the Courts which is not
liked by the litigant public and for that matter the public at large.
41. We fully endorse the views of the learned Advocate
General and here and now we want to state that there is every
justification in what is stated by the learned Advocate General in
the interest of the members of the Bar and the litigant public as
well as the working of the Court. Therefore time has come that
the leaders of the Bar should stand up to the occasion and guide
the members of the Bar not to resort to boycott of Courts which
is also held to be not permissible by the Hon’ble Supreme Court
in the decision reported in (2003) 2 SCC 45 (Harish Uppal
(Ex-Capt.) Vs. Union of India).
42. As regards the presence of the police inside the Court,
the learned Advocate General contended that the High Court
campus is a public place where several Judicial Forums viz., High
Court, Tribunals, Small Causes Court, City Civil Court and other
judicial forums are located apart from the fact that people throng
the premises since the old light house is situated in the High
Court premises which is one of the tourist spot for the traveling
public.
The
learned
Advocate
General
while
drawing
our
44
attention to the Division Bench decision reported in 2007 (2)
MLJ 456 (The Registrar General, High Court of Madras
Vs. State of Tamil Nadu) contended that the Division Bench
has directed the State to provide necessary security arrangement
pursuant to which by G.O.Ms.No.395, dated 20.03.2007, the
State Government passed orders in compliance with the orders of
the Division Bench. The learned Advocate General also submitted
that after the terrorist attack of the Parliament House, by virtue
of the directives of the Union of India, high security arrangement
was necessitated which resulted in the constitution of the
Security Committee in the High Court itself consisting of sitting
Judges of this Hon’ble Court apart from high level police officers
and law officers, which Committee decided to increase the
strength of the police personnel from the present level of 252 to
451.
The learned Advocate General pointed out that on
19.02.2009, apart from 130 police personnel, who were already
present in the Court, additional strength of 292 was drawn in all
422 police personnel for security purposes. The learned Advocate
General therefore contended that by virtue of Section 149 Cr.P.C.
and the above security arrangement made, the presence of the
police personnel inside the Court campus on 19.02.2009, cannot
be held to be against law. The learned Advocate General also
45
contended that there is no Constitutional provision or statutory
stipulations providing for immunity from any security system or
police presence to the High Court premises. Lastly the learned
Advocate General contended that on 19.02.2009, after the
incident, he met the Hon’ble Chief Minister who was ailing and
taking treatment in the Hospital and around 6.00 pm to 7.30 pm
the Hon’ble Chief Minister sent a fax message to the Hon’ble
Acting Chief Justice expressing his concern and regretted for
whatever that happened in the High Court premises and
expressed his preparedness to abide by whatever direction that
the Court may issue to set right the disaster that had taken
place. It was therefore contended that in pursuance of such
assurance extended by the Hon’ble the Chief Minister, the Chief
Secretary, Home Secretary and the Director General of Police
came to the Hon’ble Acting Chief Justice chamber and agreed for
whatever course of action that was directed to be made by the
Full Bench in its order dated 19.02.2009. The Advocate General
then contended that the State Government also constituted an
independent Committee in G.O.Ms.No.229, dated 09.03.2009,
appointing Dr.N.Sundaradevan, I.A.S., to enquire into the police
excess and fix the responsibility on the concerned police officer
and if he finds any one guilty, the State will take necessary action
46
against the concerned persons. The learned Advocate General
therefore contended that the State cannot be faulted on any
account in so far as the incident that took place on 19.02.2009 is
concerned and that it is prepared to abide by whatever direction
that may be issued by this Court.
43. We also heard Dr.Rajeev Dhavan, learned senior
counsel who appeared for 12 of the police officers other than
Mr.A.K.Viswanathan, the then Additional Commissioner of Police,
Mr.M.Ramasubramani, jurisdictional Joint Commissioner of Police
and Mr.Sandeep Rai Rathore, Joint Commissioner of Police
(Central).
44. The submissions of Dr.Rajeev Dhavan was fourfold.
According to him the questions which are required to be
considered are (i) whether the presence of the Police in the High
Court can be faulted? (ii) what value one can attach to the report
of Mr.Justice B.N.Srikrishna? (iii) was there any consistency in
the evidence placed before this Court on behalf of the lawyers, on
the other hand they were contradictory in nature and (iv) was
there a police conspiracy at all? Lastly the learned counsel also
made his submissions as to the relief that can be granted in these
proceedings.
47
45. Elaborating his submissions, the learned senior counsel
contended that the entry of the police into the High Court
premises on 19.02.2009, was imminent in the light of the threat
perception to men and material.
The learned senior counsel
therefore contended that the presence of the police force inside
the High Court campus cannot be decried. According to him the
arrest of the lawyers was not at the initiative of the police but at
the instance of those lawyers themselves who came forward to
surrender.
46. As far as the efficacy of the report of Mr.Justice
B.N.Srikrishna, it was pointed out to the learned senior counsel
that in as much as the whole gamut of the case with all details
and particulars having been placed before the Court, there is no
need to be guided by the report of Mr.Justice B.N.Srikrishna
which is only an interim report and therefore this Court can
independently assess and analyse the various materials and draw
its own conclusion. Therefore, the learned senior counsel did not
address any argument based on Mr.Justice B.N.Srikrishna’s
report. In fact when Mr.S.Prabhakaran, representing the lawyers
wanted to make comments upon the report of Mr.Justice
48
B.N.Srikrishna, this Court made it clear to the learned counsel
that it wanted to assess the whole issue and reach its own
conclusion independently and therefore, there was no need to
refer to Mr.Justice B.N.Srikrishna’s report in the course of the
submissions by any one.
47. In fact the Hon’ble Supreme Court in its order dated
06.03.2009, while sending the interim report of Mr.Justice
B.N.Srikrishna to the State Government as well as to this Court
left it to the discretion of this Court to deal with the said report.
Dr.Rajeev Dhavan therefore did not deliberate upon the report of
Mr.Justice B.N.Srikrishna in the course of his submissions.
48. As far as the scope of any disciplinary action against
any of the police officers whom if this Court ultimately finds
responsible for the gory incident that took place on 19.02.2009,
the learned senior counsel contended that such a course of action
would be governed by Articles 309 to 311 of the Constitution and
the holding of enquiry including suspension can be dealt with only
by an appropriate disciplinary authority in accordance with the
Constitutional provisions and the rules framed thereunder.
49
49. As far as the scope of initiating any contempt action
against any of the officers based on the ultimate conclusion of
this Court, the learned senior counsel contended that it would be
too wide a proposition, for the counsel representing the lawyers,
to claim immunity or privilege for the High Court premises in
comparison with the Parliament or the Assembly. The learned
senior counsel would however state that the Court will have to
analyze the issue of contempt by examining the same from the
point of view of the “intent” of the concerned police officers but
not by mere excessive action or other misdeeds.
50. On the relief aspect, the learned senior counsel fairly
submitted that whomsoever suffered any physical injury or other
damages should be compensated by considering payment of ex
gratia instead of attempting to measure the actual suffering or
damages.
51. Out of 12 police officers for whom the learned senior
counsel made his submissions, he pointed out that Messers
A.M.S.Gunaseelan,
Joint
Commissioner
of
Police
(South),
T.S.Anbu, Deputy Commissioner of Police (Anna Nagar) and
C.Sridhar, Deputy Commissioner of Police (Adyar) arrived at the
scene of occurrence only at 5.00 pm and therefore, by no stretch
50
of imagination they can be held to have had any role to play. As
far as Mr.R.Thirugnanam, Deputy Commissioner of Police (TrafficNorth) and Mr.K.Joshi Nirmal Kumar, Deputy Commissioner of
Police (Traffic-South) are concerned, the learned senior counsel
pointed
out
that
they
were
actually
in
charge
of
traffic
arrangements and therefore their presence did not have anything
to do with the incident of lathi charge, in as much as they had no
role to play on that aspect and that merely because they were
officers and they were present at the time of occurrence they
cannot be roped in. The learned senior counsel also pointed out
that there was no specific allegation against those officers as to
any specific act of overt act on their part.
According to the
learned senior counsel, the test is as to whether any police officer
committed breach of statutory duty and even going by the stance
of the Government, the officers whomsoever responsible alone
should be punished.
52. The learned senior counsel submitted that there was
absolutely no basis for the allegation of conspiracy leveled
against either the Commissioner of Police or other police officers.
According to him, when the police officers carried out their duties
out of necessity for maintaining any law and order situation and
public tranquility they should be given full protection.
51
53. The learned senior counsel by drawing the attention of
this Court to various G.Os. and other steps taken by the Court
including arrangements made by the Security Committee headed
by senior Judges of this Court for the protection of the High Court
premises and also the various criminal cases pending against
various lawyers, numbering more than 90 submitted that there
was a real threat perception that was prevailing which reached its
peak on 19.02.2009 and therefore the presence of police in large
number was necessitated inside the premises. He also contended
that the intelligence report also reminded of the serious threat
perception prevailing and that the police acted based on such
intelligence report and the same cannot be faulted on the footing
that they did not obtain the prior permission of the Registry. He
also relied upon an earlier Division Bench decision of this Court
reported in (2007) 2 MLJ 1 (Madras High Court Advocates
Association Vs State of Tamil Nadu) and the judgment of the
Hon’ble Supreme Court reported in (2003) 2 SCC 45 (Harish
Uppal (Ex-Capt.) Vs. Union of India).
He also made a
reference to the incident that took place inside the Court Hall on
17.02.2009, when some 15 advocates behaved in an unruly
manner inside the Court Hall and contend that such activities of
52
the lawyers contributed more to the threat perception for the
police to act in the campus on 19.02.2009. By referring to the
various incidents that took place in and around the High Court
campus at the instance of the lawyers, the learned senior counsel
contended that the threat perception was very much in existence
for the police to act on 19.02.2009 and this Court should not
substitute its own opinion about the threat perception assessed
by the police authorities. The learned senior counsel however
came forward to tender an unconditional apology on behalf of all
the police officers for whatever happened on 19.02.2009.
According to him as there was no mala fide motive there would
be no scope for proceeding against the police officers for
contempt. He also contended that on a combined reading of
Section 52 IPC and Section 132 of Cr.P.C., it can be seen that
unless there is want of good faith, the conduct of the police
officers and other persons will not warrant any action against
them either by way of disciplinary proceedings or by way of
criminal proceedings or by way of contempt. According to him
there was no reasonable ground for proceeding against them.
The action of the police at best can be construed as an error of
judgment and not an intentional onslaught unleashed against the
lawyers as contended by the lawyers. The learned senior counsel
53
strenuously contended that the attempt of the lawyers to brand
the police action on 19.02.2009, by calling it as an “Operation
Black Coat” has absolutely no basis and to call it the least it was
a bogus allegation.
54. The learned counsel also contended that in any event
the incident that happened at 5.00 pm cannot be attributed to
the Commissioner of Police and he cannot be proceeded against
either by way of disciplinary action or for contempt.
55. The learned senior counsel contended that the Court
can consider payment of any ex gratia either by itself or by
referring to a retired Judge of this Court to determine.
56. The learned senior counsel strongly condemned the
political parties attempting to use the High Court premises as
their propaganda platform and that the lawyers should not give
scope for any one to enter the campus with that intent.
According to him the root cause for all the problems was not the
presence of the police inside the campus but the political
involvement of the lawyers and their activities inside the campus.
54
57. The learned senior counsel also pointed out that the
State
Government
has
taken
the
necessary
initiative
by
appointing One Man Committee headed by Dr.N.Sundaradevan,
I.A.S., to enquire into the matter in order to ascertain as to any
one responsible for the gory incident that took place on
19.02.2009 and that the lawyers can cooperate with the said
Committee to pin down the person responsible. It was further
contended that since as per the direction of this Court, the CBI
has been entrusted with the task of investigation, this Court
should permit such agency to carryout its task in accordance with
law and there cannot be any parallel enquiry by this Court in this
proceeding.
According to him what can be done by way of
judicial process cannot be done by way of pre-emptive measure,
which will amount to anticipatory mala fides.
The learned
counsel therefore contended that there was no basis for placing
the officers under suspension and the suspension order by the
Full Bench dated 18.03.2009, should be withdrawn.
58. The learned senior counsel submitted that if for any
reason
this
Court
concludes
that
initiation
of
contempt
proceedings is warranted, the same need not be ordered in as
much as the respondents whom he represent offer unconditional
55
apology in advance and that their apology should be accepted
and they should be relived.
59.
Mr.R.Muthukumarasamy,
learned
senior
counsel
representing the High Court placed before this Court a report filed
by the Registrar General which states that due to the incident
that occurred on 19.02.2009, extensive damage was caused to
Court buildings and vehicles and that the Court proceedings were
disrupted after 4.00 pm because of the gory incident, glass
pieces were strewn all over the premises and the damaged
vehicles were parked in haphazard manner and therefore the
High Court and the Subordinate Courts inside the High Court
campus remain closed initially on 20.02.2009 and thereafter on
23.02.2009 and 24.02.2009. The Court campus was stated to
have been subsequently cleaned and the Courts in the State
commenced functioning only on 25.02.2009, though the boycott
by the advocates continued till 20.03.2009. In the said report
the Registrar General has also furnished the details about the
compensation paid to the vehicle owners as well as for the
personal injuries suffered by the advocates and others apart from
the medical expenses incurred for the injured. Annexures 1 to 3
has also been filed along with the report furnishing the details of
56
extent of damages caused to the vehicles and the details of
compensation awarded for personal injuries.
60. The learned senior counsel by referring to Article 215 of
the Constitution submitted that the power of the High Court is
plenary, as superior Court of Records.
He also contended that
whether or not grant of permission by the Registry is required for
the police to enter, the question is can the police exceed their
limit inside the Court premises, which would call for any stern
action. The learned senior counsel referred to the decisions of
the Hon’ble Supreme Court reported in AIR 1967 SC 1 (Naresh
Shridhar Mirajkar Vs. State of Maharashtra) and AIR 1993
SC 1014 (M.V.Elisabeth Vs. Harwan Investements and
Trading
Private
Limited,
Goa)
reply
argument
in
the
course
of
his
submissions.
61.
In
their
Mr.S.Prabarkaran
and
Mr.R.C.Paul Kanagaraj contended that this Court should proceed
against the police officers straightaway for contempt and impose
punishment and no further opportunity should be extended to
them.
57
62. Ms.R.Vaigai, in her reply submissions, by relying upon
the decision reported in 1898 ILR Mds 21 (Queen-Empress
Vs. Subba Naik and Others) submitted that even prior to the
coming into force of the Constitution, this Court has taken the
view that whomsoever participate in police excess either on their
own volition or out of their official necessities, they are
compositely responsible and should be punished for their excess.
63. The learned counsel pointed out that the various
submissions made on behalf of the police officers only referred to
the law and order situation and there was no justifiable ground
demonstrated for violation of any public order in order to invoke
Chapter X which contains Sections 129 to 136 of the Cr.P.C.
warranting lathi charge on the ground of unlawful assembly.
In
other words, the learned counsel would contend that mere law
and order situation cannot be a ground for ordering lathi charge
and to justify lathi charge to quell the mob, there should be
public tranquility.
The learned counsel by referring to the
decisions of the Hon’ble Supreme Court reported in AIR 1966 SC
740 (Ram Manohar Lohia Vs. The State of Bihar) and 1970
(3) SCC 746 (Madhu Limaye Vs. Sub-Divisional Magistrate,
Monghyr) contended that the police completely misdirected
58
themselves in a circumstances where there was admittedly only
law and order situation and not public disorder or a situation
calling for such action on the ground of safeguarding the
sovereignty of the State. According to the learned counsel there
was total suppression of truth by the highest functionaries of
police and therefore, in order to hold a proper and fair enquiry,
suspension of the police officials is imminent.
According to her,
the claim for ex gratia payment as claimed in W.P.No.3705 of
2009 should be considered by this Court and direct the State to
order such payment.
64. This proceedings including the various writ petitions and
criminal original petitions filed by the lawyers as well as party-inpersons, which stems from the suo motu writ petition initiated by
this Court cannot be strictly called as an adversarial litigation.
Nevertheless, having regard to the magnitude of the occurrence
that took place on 19.02.2009, there were allegations and
counter allegations at the instance of the lawyers on the one side
and the police on the other side, which made the present
proceeding appear as though it was adversarial in nature. But in
our considered opinion, this Court has to make all endeavors to
actively steer for a search in order to ascertain the truth in as
59
much as, as against the rival contentions of the parties who
appeared before us, this Court is of the view that the issue
concerns the prestige/stature of the institution viz., judiciary and
the steps to be taken in future to protect the institution from any
onslaught and thereby ensure that the confidence reposed in this
institution by the public at large is not in any way impaired.
Therefore in our view, the whole proceeding is a blend of
adversarial and inquisitorial in nature. We say so in as much as
the adversarial system places a premium on the individual rights
of the accused, whereas the inquisitorial system places the rights
of the accused secondary to the search for truth.
65. With this prelude as to the approach to be made in this
proceeding, when we examine the various facts placed before us,
we find that we are obligated upon to examine the following
issues for consideration viz.,
(i)
Whether
institutions
in
the
premises
particular
the
of
High
judicial
Court
campus is comparable to the premises of the
Parliament
and
the
regulations
providing
immunity from any attack from any quarters ?
60
(ii) What was the root cause for the
unsavory
incident
that
took
place
on
19.02.2009, inside the High Court campus and
who was responsible for the ghastly incident
to take place on 19.02.2009 ?
(iii) If so, who are the concerned persons
to be blamed ?
(iv) If the responsibility can be fixed on
any particular individual or officer what is the
consequential action to be taken?
(v) Ghastly incident apart, what are the
steps to be taken in future to ensure that no
such incident recur again ?
(vi) In the event of some one being held
responsible for the ghastly incident that took
place
on
19.02.2009,
whether
necessary
contempt action is called for ?
While examining the various contentions raised by the parties, as
far as possible, we are taking into account the pleadings and the
documents and other materials placed before us at the instance
of the State and the Police Officers.
61
QUESTION Nos.(i), (ii) and (iii) :-
66. Questions (i), (ii) & (iii) can be examined together. For
that purpose, we have before us the affidavit of lawyers and the
police officers. The sum and substance of the plea of the lawyers
to be briefly stated are that they were on boycott from
29.01.2009, to support the Sri Lankan Tamils (not the LTTE);
that as part of their agitation, they went on procession, fasting,
etc., that there was an incident on 17.02.2009, inside the Court
Hall
No.3,
in
which
one
Dr.Subramaniam
Swamy
was
manhandled and on whom eggs were thrown; that with reference
to the said incident, a case was registered against 15 advocates;
that on 19.02.2009, at the instance of those 15 advocates who
have been arrayed as accused in a criminal case registered
against them,
Mr.Karuppan, led them to B-4 Police Station
around 2.30 pm; that at their instance a counter case was
registered in Crime No.14 of 2009 as against Dr.Subramaniam
Swamy under
the
Scheduled
Caste
and
Scheduled
Tribes
(Prevention of Atrocities) Act; that the Advocate/Accused action
who initially wanted to surrender before the police on their own,
later, after getting a copy of the FIR in Crime No.14 of 2009,
resiled from their stand and were not inclined to surrender and
62
subsequently, took the stand that Dr.Subramaniam Swamy
should be arrested first if they were to surrender. Mr.Karuppan
expressing his inability to keep up his word, stated to have
returned back the FIR copy of Crime No.14 of 2009 and walked
away.
67.
The
VCD
placed
before
the
Court
by
Mr.A.K.Viswanathan, Additional Commissioner of Police, which is
marked as CD-R2 reveals that it was around 15.36 hours tense
situation mounted near the B-4 police station and it was at that
point of time, the armed policemen who were gathered in
sufficient number at that spot pushed in some advocates into the
police van and after taking into custody of about 15 lawyers, the
police van left the campus. Closely thereafter, there was pelting
of stones on either side which ended in a lathi charge by the
police around 3.40 pm.
68. Thereafter the advocates from two different directions
were posing a challenge to the police and the police repeated the
lathi charge apart from beating the lawyers in single or in
groups.
The vehicles parked inside the campus were also
damaged by the police personnel. After 4.00 pm it looked as if it
63
was a battleground in as much as the police were seen on a
hitting spree as and when groups of advocates were posing a
challenge to them from different directions and in that process
the police in fact entered the Small Causes Court and the Library
Section of the Law Association, Madras High Court Advocate
Association and also the annexe building of the High Court. At
one point of time such charging policemen were even seen near
the Hon'ble Chief Justice Chamber.
69. In the meantime, the Acting Chief Justice who was
informed about the lathi charge by the police around 3.40 pm
tried to contact the Commissioner of Police in order to remove
the police personnel from the campus as the permission of the
Court was not obtained by the police in order to either make the
arrest or take any other action under the guise of maintaining law
and order. Though the Commissioner of Police does not dispute
the time of the Hon'ble Acting Chief Justice directing him to meet
him in his Chambers and stop the movement of police force
inside the campus, took the stand that he was not able to meet
the Hon'ble Acting Chief Justice and that he withdrew the police
only after 5.00 pm. After withdrawal of the police, B-4 police
station was set on fire and some of the properties were also
64
burnt in the said fire which took place between 5.00 to 5.30 pm,
when the fire service personnel approached to put down the fire,
the same was resisted and once again the police resorted to
another lathi charge at 5.35 pm to quell the mob and thereafter
the fire in the B-4 Police Station was put down.
70. The Commissioner of Police went to the Chambers of
the Hon'ble Acting Chief Justice along with the Chief Secretary,
Home Secretary and the Director General of Police.
In the
Chambers of the Hon'ble Acting Chief Justice, a Full Bench was
constituted and an order came to be passed by initiating a suo
motu writ proceedings in W.P.No.3335 of 2009.
In the said
order, after narrating briefly the incident and the havoc caused to
the men and material, the Full Bench after hearing the high level
officers of the State namely the Chief Secretary, the Home
Secretary, the Director General of Police and the Commissioner of
Police directed the matter to be entrusted with the CBI as agreed
to by the Chief Secretary and the CBI was directed to register a
case treating the order passed by the Full Bench as First
Information Report.
65
71. The report of the Registry disclose that in the lathi
charge that took place on 19.02.2009, as many as 95 advocates,
20 staff and 24 others were injured, who suffered major as well
as minor injuries apart from the damages caused to 64 four
wheelers, 67 two wheelers, 3 bicycles including a Judges’ van
parked inside the premises. Damages were also caused to library
books, bookracks and also a TV kept in the Law Association of
the Small Causes Court.
72. When we examine the above narration of events and
find out as to who ignited the spark, the direct information is
available in the affidavit of the jurisdictional Joint Commissioner
of Police. In his affidavit dated 07.09.2009, he states that on
19.02.2009, he along with the Additional Commissioner of Police
Mr.A.K.Viswanathan arranged for the bandobust in the High Court
campus since there was intelligence information that on that date
Dr.Subramaniam Swamy who is scheduled to visit the High Court
to attend as party-in-person before a Division Bench presided
over by the Hon'ble Acting Chief Justice as well as the Court
presided over by Hon'ble Mr.Justice S.Manikumar, there was
likelihood of an attack on him. According to the jurisdictional
Joint
Commissioner
of
Police,
Dr.Subramaniam
Swamy
as
66
scheduled came to the High Court, that the police bandobust was
neatly carried out and he also left the High Court campus by
around 11.30 am. The Joint Commissioner of Police is stated to
have withdrawn the additional police force to B-2 police station
and was involved in debriefing the force. At that point of time he
would state that Mr.Vijyandran one of the accused in the
occurrence that took place on 17.02.2009, in Court Hall No.3
approached him and wanted the list of names of other accused in
order
to
enable
them
to
surrender
on
their
own.
The
jurisdictional Joint Commissioner of Police would claim that he
wanted to make use of the voluntary approach made by that
accused and furnished the list of names and to accomplish their
surrender, proceeded back to B-4 Police Station located inside
the High Court campus along with his force. In fact the approach
was stated to have been made by Mr.Vijayendren at about 12
noon.
The
rest
of
the
incident
about
the group
led
by
Mr.Karuppan and others was after 2.00 pm.
73.
When
we
examine
those
facts
stated
by
the
jurisdictional Joint Commissioner, we feel that we should also
keep in mind what was the stand of the jurisdictional Joint
Commissioner of Police as well as the Additional Commissioner of
67
Police
on
this
aspect.
In
the
affidavit
of
the
Additional
Commissioner of Police Mr.A.K.Viswanathan, it is stated that he
was also assigned the task of bandobust to be provided to
Dr.Subramaniam Swamy in the morning session and that after
Dr.Subramaniam Swamy left the High Court premises, he also
left for his office at Egmore.
That around 2.45 pm the
Commissioner of Police directed him to proceed to the High Court
and oversee the process of surrender of the accused involved in
the
occurrence
dated
17.02.2009.
According
to
Mr.A.K.Viswanathan, he was not in favour of such a move of the
surrender offered by the advocates that too in the High Court
premises, therefore he expressed his viewpoint that it would not
be prudent for the police to accept their offer of surrender at that
point of time that too inside the premises as it may ultimately
result in very serious consequences.
Mr.A.K.Viswanathan also
stated in his affidavit that in spite of his viewpoint expressed to
the Commissioner of Police, the Commissioner of Police insisted
that the process of surrender should be proceeded with and
Mr.A.K.Viswanathan should remain in the High Court premises
along
with
the
jurisdictional
Joint
Commissioner.
Mr.A.K.Viswanathan would therefore state that the Commissioner
of Police being his superior officer, he had to obey his command
68
and therefore he waited for his further directions by remaining at
B-2 police station and went inside the High Campus through
Esplanade entrance by around 3.45 pm. He would further state
that as directed by the Commissioner of Police, the first lathi
charge took place around 3.56 pm and the subsequent lathi
charge also took place as directed by the Commissioner of
Police.
The jurisdictional Joint Commissioner of Police would
state in his affidavit that after Mr.Karuppan expressed his
inability to surrender the accused advocates as promised, the
police took into custody 15 persons without ascertaining as to
whether they were the real accused in the occurrence that took
place on 17.02.2009, that since thereafter, there was a threat to
the B-4 police station, the police force continued to remain near
the B-4 police station and since the advocates mob went out of
control, the jurisdictional Deputy Commissioner of Police Mr.Prem
Anand Sinha ordered for lathi charge at around 3.55 pm. He
would state that subsequently such lathi charge was repeated at
4.27 pm and it went on till 5.00 pm, when the Commissioner of
Police came to the spot and withdrawn the police force to B-2
police station.
69
74. The Commissioner of Police in his version would state
that after receiving the information about the tension that
mounted inside the premises, he proceeded to the High Court
from his Egmore Office and that he could reach the B-2 Police
Station only around 16.03 hours and since he was also attending
to the traffic congestion and giving directions to other police
personnel in the light of the Assembly Session in progress, he
could reach the actual spot of the High Court only by 5.00 pm.
Though he would say he was contacted by the Hon'ble Acting
Chief Justice who directed him to withdraw the police from the
High Court campus, he could not enter the campus itself as the
gates were all closed and he could enter only by 5.00 pm through
Esplanade gate. He would further state that after he reached the
spot, he immediately gave directions to withdraw the police and
that the lathi charge was ordered by the Additional Commissioner
of Police Mr.A.K.Viswanathan in consultation with other officers
viz., the Joint Commissioner of Police, the Deputy Commissioner
of Police and others.
75. Apart from the above version about the incident, as far
as the necessity for mobilizing additional police force into the
campus on 19.02.2009, is concerned, while the Additional
70
Commissioner
of
Police
would
state
that
the
same
was
necessitated initially to provide bandobust to Dr.Subramaniam
Swamy, the Commissioner of Police mobilized such additional
force at different times, based on his own assessment of the
situation.
76. At this juncture, it will also be worthwhile to refer to
statutory documents namely the First Information Report (FIR) in
Crime No.15 of 2009 dated 19.02.2009.
The said FIR was
registered at 19.20 hours on 19.02.2009 and the complainant is
the Inspector of Police of B-2 Police Station.
The date of
occurrence has been noted as 19.02.2009 and the duration was
stated to be from 14.30 hours to 18.00 hours. As per the said
FIR registered with the B-4 police station, the relevant facts that
could be gathered are as under:
(a) On 19.02.2009, armed police,
commando guards were drawn into the
High
Court
campus
along
with
higher
officials and that the complainant was also
present on security duty.
(b) At the instance of the lawyers led
by Mr.Karuppan, Crime No.14 of 2009 was
registered under Section 3(1)(x) of SC/ST
71
Prevention
Section
of
Atrocity
506
Act
(ii)
Dr.Subramaniam
read
IPC
Swamy
with
against
and
Radha
Mohan.
(c)
After
the
registration
and
furnishing of copies of the FIR since the
lawyers raised slogans, the police officials
caught hold of 4 to 5 lawyers involved in
the earlier case and put them in the police
vehicle since they refused to surrender
apart from using vulgar abuses towards
the police.
(d) The lawyers who were assembled
there pelted stones, shouted slogans and
hurled uncultured and uncivilized abuses
and retrieved those lawyers who were put
into the police van.
(e) By the stone throwing of the
lawyers, the Sub-Inspector of Police, the
Inspector of Police and many male and
female police personnel were injured and
one Police Head Constable fainted.
(f)
The
lawyers
around
150
in
number continue to throw stones opposite
the B-4 Police Station from a distance and
72
caused damages to two wheelers and four
wheelers and the time was around 3.30
pm.
(g) At that point of time, the Deputy
Commissioner of Police (Flower Bazaar
Range) after giving necessary warning to
disperse, directed the police to fire teargas
shells to disperse the crowd and that
thereafter he also directed the lathi charge
since the crowd did not disperse but
continue to pelt stones.
(h) Mr.Justice A.C.Arumugaperumal
Adityan who came to the spot was injured
by a stone pelted by the lawyers and he
was put in a separate vehicle and sent to
the hospital and the time was 4.30 pm.
(i) At 4.30 pm the Commissioner of
Police also came there and directed the
policemen and higher officials to return
back to B-2 Police Station and that he
would inform the Hon’ble Chief Justice of
the
High
Court
about
the
incident.
Accordingly all the policemen went near
the B-2 Esplanade Police Station.
73
(j) Thereafter the lawyers who had
formed an unlawful assembly set fire to the
B-4
Police
Station
and
also
to
the
Government properties namely two four
wheelers and five two wheelers parked in
front of the B-4 Police Station which were
worth about 4 to 5 lakhs.
The police
therefore entered the High Court premises
once again for chasing the lawyers with
lathi and also by beating by way of self
defence in which some of the lawyers and
more
than
60
policemen
and
higher
officials sustained bleeding injuries.
(k)
Therefore
the
complainant
wanted appropriate action to be taken
against
Messers
Karuppan,
Rajanikant,
Vijayendran, Pughazhendi and Jeyakumar
who
were
in
the
forefront
of
the
disturbance as well as the lawyers who
accompanied them in the criminal act.
77. The Commissioner of Police filed a report before the Full
Bench on 18.03.2009. In the said report, the Commissioner of
Police
has
stated
Commissioner
of
that
Police
along
and
with
the
the
jurisdictional
jurisdictional
Joint
Deputy
Commissioner of Police, 147 policemen including quick reaction
74
team
were
mobilized
in
connection
with
the
visit
of
Dr.Subramaniam Swamy; that at 11.30 am, Dr.Subramaniam
Swamy left the Court premises; that after the police force moved
to B-2 Police Station for debriefing; advocates Mr.Vijendran and
Mr.Kunaraja approached the officer and asked for the list of
accused who were involved in the incident inside the Court Hall
on 17.02.2009; that at 2.10 pm Messers Karuppan, Rajnikanth,
Vijendran, Pughazhendi and Jayakumar along with large number
of advocates went to the B-4 Police Station and insisted for
registration of a case against Dr.Subramaniam Swamy as a pre
condition for surrender; that at 2.30 pm, he had the information
that trouble was brewing, whereupon he sent the Additional
Commissioner of Police Mr.A.K.Viswanathan along with the Joint
Commissioner of Police (Central) and some other officers with
reinforcement of 118 men and officers in all 265 men and officers
included special action group which is part of the armed reserve
police with special training. He also stated that around 3.45 pm
FIR copy was given to the advocates who thereafter insisted for
arrest of Dr.Subramaniam Swamy before arresting them. Even
Mr.Karrupan’s persuasion did not yield any result. Thereafter,
the mob started pelting stones at the police in which some
policemen were injured.
75
78. As per the report 15 advocates were apprehended and
sent in a police van to Thousand Lights Police Station.
In
paragraph 16 of the said report, the Commissioner of Police
would say that to protect the life and property of the police
personnel, the public and others, the Additional Commissioner of
Police who was the senior most officer present at the spot after
consulting the other senior officers took a collective decision to
declare the assembly as unlawful and disperse it. Based on his
directions, the Deputy Commissioner of Police (Flower Bazaar
Range) took the measures to disperse the unlawful assembly by
using minimum force. This was stated to have taken place at
4.00 pm.
along
with
He also stated that some additional reinforcement
Joint
Commissioner
of
Police
(South),
Deputy
Commissioners of Police from Adyar, Anna Nagar, T.Nagar and
Mylapore were also rushed in to control the situation and the
total strength was 291 men and officers. He would further state
that he was directed by the Hon’ble Acting Chief Justice to
withdraw the police and that he entered the High Court Police
Station at around 5.00 pm and also went around the High Court
campus to assess the situation and get first hand information as
to what happened in the High Court campus. According to him,
76
at around 5.30 pm the entire strength was withdrawn from the
High Court premises to B-2 Esplanade Police Station.
79. The Commissioner of Police in paragraph 19 of the said
report would state that around 5.35 pm as the B-4 Police Station
was set on fire and the fire brigade was not allowed to put down
the fire, as Commissioner of Police cum Additional District
Magistrate and after consulting all the senior officers present on
the spot, he took the collective decision to disperse the unlawful
assembly and after the fire was put down, he withdrew the police
force to the Esplanade Police Station.
80. He stated that he reached the Chambers of the Hon’ble
Acting Chief Justice at 6.40 pm along with the Director General of
Police, Home Secretary and the Chief Secretary. According to
him in the clash 120 police personnel including fire service
personnel, one Hon’ble Judge, 77 advocates, 10 Court staff, 4
press persons, 3 law students and 7 others were injured. Along
with the report, the Commissioner of Police also produced the
manpower chart showing the presence of police strength in B-4
Police Station area on 19.02.2009, drawn at different times. He
also produced the list of police officers present in the High Court
between 3.00 pm and 5.00 pm.
77
81. The Commissioner of Police addressed a letter to the
Registrar General of this Court on 17.02.2009, wherein, he after
referring to the assault by a group of unruly advocates on
Dr.Subramaniam Swamy and other police personnel with eggs
and hands inside the Court Hall, sought for the concurrence of
the Registrar General to register a criminal case and set the
criminal law in motion, since the incident happened inside the
High Court premises. In the said letter itself he has referred to a
complaint already made by the Assistant Commissioner of Police,
High Court range.
82. The Registrar General sent a reply dated 18.02.2009,
stating as under:
“I am to state that under law, the
concurrence of the Registry is required to
register a criminal case but police should
do it on its own, in view of the fact that
already
a
complaint
Mr.M.P.R.Kader
is
preferred
Mohideen,
by
Asst.
Commissioner of Police, High Court Range
with the High Court Police Station.”
There seems to be a typing mistake in the second sentence were
the word ‘not’ after the expression ‘concurrence of the Registry is
(not) required’ seems to have been omitted to be typed.
78
83. Therefore while the Commissioner of Police wanted the
concurrence to register a criminal case, the Registrar General
made it clear that the police should register the criminal case on
its own.
84. Keeping the above facts in mind when we find the
answer for Question No.(ii), at the outset, we are of the view that
the whole ghastly incident could have been avoided if the police
personnel headed by the Commissioner of Police had applied their
prudence after thoroughly analysing the various factors past as
well as the present that happened upto that date. The conduct of
the police personnel in having provided necessary bandobust in
the light of appearance of Dr.Subramaniam Swamy in two
different matters in the High Court on 19.02.2009, cannot be
faulted.
85. It cannot be disputed that there was a high level of
threat perception to Dr.Subramaniam Swamy and therefore it
was the duty of the State police to ensure that no harm was
caused to him at the time of his visit to the High Court premises
in connection with certain litigations in which he was involved. In
79
fact having regard to the high level bandobust arranged,
Dr.Subramaniam Swamy could transact his business and leave
the Court campus at 11.30 am without any hindrance. After he
left, the jurisdictional Joint Commissioner of Police also withdrew
the extra police force drawn for that purpose to B-2 Police Station
for debriefing.
86. The whole trouble started when two advocates by name
Mr.Vijendran
and
Mr.Kunaraja
approached
the
Joint
Commissioner of Police and stated that 15 advocates who were
involved in the incident on 17.02.2009, inside the 3rd Court Hall
wanted to surrender. Though the Commissioner of Police in his
letter dated 17.02.2009, stated that since the incident on
17.02.2009, happened inside the High Court premises, he needed
the concurrence of the Registry even to register a criminal case in
order to set the criminal law in motion, we wonder how having
regard to the background of the accused involved in the said
incident dated 17.02.2009, any prudent officer at the level of the
Commissioner of Police could have been lured by the offer of
voluntary surrender and that too in a smooth manner making it
so very easy for the police personnel to take them into custody.
Moreover, after the boycott which commenced on 29.01.2009,
80
the advocates started attending Courts only from 19.02.2009. In
fact during the course of the boycott between 29.01.2009 and
18.02.2009, there were number of incidents which had taken
place outside the Court campus in which a Cycle shop in
Broadway was looted, a Transport Corporation vehicle was
hijacked and when some advocates were arrested, hue and cry
was made relating to their remand. In all those cases, some of
the accused amongst the 15 advocates who were involved in the
incident dated 17.02.2009, were also arrayed as accused.
87. The Commissioner of Police himself in his affidavits
dated 07.09.2009, 09.09.2009, 18.09.2009 and the report dated
18.03.2009, has descriptively stated the various alleged activities
of group of lawyers which caused concern. In such a situation as
the head of the police force of the city of Chennai when one of his
immediate subordinate officers namely Additional Commissioner
of Police is stated to have suggested to him as has been stated in
his affidavit dated 27.08.2009, that it was not prudent to arrest
the advocates in the High Court Police Station as it would create
problems, it was quite strange that the Commissioner of Police
ignored such a notable advice of an officer no less than in the
position of Additional Commissioner of Police and proceed to
81
state that when the advocates wanted to surrender, such
surrender should be allowed to take place by mobilizing the police
strength to 291 which included special task force and armed
police personnel. There is no reason why the statement of the
Additional Commissioner of Police that it is not advisable to
attempt the process of surrender inside the High Court premises
should not be accepted as true.
88. It is not the case of the Commissioner of Police that the
Additional Commissioner of Police had an axe to grind and that
he wanted to let down the Commissioner of Police by spinning
such a story. In fact when the Commissioner of Police directed
him around 14.45 hours to proceed to Esplanade Police Station
and monitor the surrender of advocates in the High Court police
station, he immediately proceeded to the Esplanade Police
Station and thereafter went to B-4 Police Station situated inside
the High Court campus. The point for consideration is that when
at least one of the high level officers could visualize the
magnitude of the problem that may crop up while allowing the
surrender to take place on the date when the advocates have
withdrawn the boycott and the advocates started attending the
Court proceedings in full strength, the Commissioner of Police
82
could have ignored his view point. The claim of the Additional
Commissioner of Police that he did advise the Commissioner of
Police not to go ahead with the surrender by the advocates inside
the High Court premises in the background of the situation that
was prevailing prior to 19.02.2009, would have been the proper
advice of any normal thinking person and more so in the case of
a
high
ranking
police
officer
Commissioner of Police.
at
the
level
of
Additional
In the counter affidavit filed by the
Commissioner of Police himself dated 09.09.2009, no where he
has alleged any sort of animosity or any difference of opinion that
existed between him and the Additional Commissioner of Police in
order to state that with a view to wreck vengeance on the
Commissioner of Police, the Additional Commissioner of Police
came forward with such a version in his affidavit in order to shirk
his responsibilities and that such a suggestion never emanated
from him on the fateful day.
89.
A
perusal
of
the
affidavit
of
the
Additional
Commissioner of Police Mr.A.K.Viswanathan dated 27.08.2009,
discloses that though he told the Commissioner of Police that
after the arrest of the 15 advocates and taken to the Thousand
Lights Police Station, it would atleast then be prudent to
83
withdraw the entire police force from the High Court premises,
the Commissioner of Police is stated to have insisted that the
entire force should remain in the premises and protect the B-4
Police Station.
In paragraph 11 of the said affidavit, he has
stated that apart from him, the jurisdictional Joint Commissioner
of Police and the Central Zone Joint Commissioner of Police also
wanted to withdraw all the police from the High Court campus but
at the insistence of the Commissioner of Police, the entire force
had to remain inside the High Court campus. He would further
state that by around 16.00 hours, the Commissioner of Police
reached the Esplanade Police Station and since the trouble was
mounting in the High Court premises, the police force were
chasing
the
advocates
and
therefore
he
contacted
the
Commissioner of Police for withdrawing the force to which also he
did not agree on the ground that the police station should be
protected.
90. According to him the Commissioner of Police came
inside the High Court premises with additional force numbering
more than 100 and thereafter as per his orders teargas was fired
for the first time at about 16.45 hours followed by a lathi charge.
He would then state that only at about 17.15 hours, the
84
Commissioner of Police ordered for withdrawal of the police force
near the fire station, which is also inside the High Court campus
and thereafter at about 17.45 hours, the High Court Police
Station was set on fire. The Commissioner of Police stated to
have ordered fresh lathi charge again at that point of time. The
Additional Commissioner of Police therefore stated that the
Commissioner of Police was commanding the entire operation
inside the High Court premises on 19.02.2009.
91. A counter affidavit was filed by the Commissioner of
Police on 09.09.2009 to the affidavit of Mr.A.K.Viswanathan. In
the
said
attempting
affidavit,
to
the
throw
Commissioner
the
entire
of
blame
Police
on
the
was
only
Additional
Commissioner of Police Mr.A.K.Viswanathan. As far as the police
presence upto the stage when Dr.Subramaniam Swamy left the
High Court premises is concerned, there is no contradiction. The
Commissioner
of
Police
however
deny
the
statement
of
Mr.A.K.Viswanathan that he was contacted at 1.00 pm or that he
voiced his concern about the process of arrest of those advocates
who wanted to surrender. The Commissioner of Police however
confirmed that at about 14.15 hours when he was informed about
the arrival of advocates to surrender at B-4 police station, he
85
directed Mr.A.K.Viswanathan to proceed to B-4 Police Station to
monitor the surrender. He was also stated to have subsequently
instructed Mr.A.K.Viswanathan at about 14.45 hours to ensure
peaceful surrender of advocates on account of their new demand
of arrest of Dr.Subramaniam Swamy as a precondition. The
Commissioner
of
Police
therefore
would
state
that
Mr.A.K.Viswanathan as Additional Commissioner of Police was in
command from 15.30 hours onwards when the pressure mounted
inside the High Court premises at B-4 Police Station which led to
lathi charge around 16.00 hours. According to the Commissioner
of Police when the accused advocates who were to be arrested by
virtue of registration of a criminal case in Crime No.13 of 2009,
for the eggs thrown and assault incident that took place on
17.02.2009, it was well within the powers of the jurisdictional
Joint Commissioner of Police to accept the offer of surrender of
advocates and therefore there was nothing wrong in the police
force remaining inside the High Court campus and ensure their
arrest.
92. When the above sequence of events narrated by the
Commissioner of Police and the Additional Commissioner of Police
as well as that of the jurisdictional Joint Commissioner of Police
86
are analyzed, it is clear that while the Additional Commissioner
of Police would contend that the acceptance of surrender of
advocates and their arrest inside the High Court campus was not
a prudent step and that keeping the police force in large numbers
in pursuance of such arrest was also an imprudent act, the tone
and tenor of the stand of the Commissioner of Police in the
various affidavits sworn to by him does not reflect such a
thinking. On the other hand the firm stand of the Commissioner
of Police right through was what come may being an accused in a
crime, when the accused advocates came forward to surrender on
their own, irrespective of other consequence that may erupt in
the High Court campus, the police should proceed with its
determination to accept their offer of surrender and nobody can
find fault with such a step.
93. It is quite amazing to hear such a stand of the
Commissioner of Police whom according to the learned senior
counsel Dr.Rajeev Dhavan is a recipient of a gold medal in his
service and that he is presently doing his Doctorate in one of the
subjects connected with police administration. If an immediate
subordinate officer at the level of Additional Commissioner of
Police could think in a prudent way not to entertain the surrender
87
offered by the advocates which in his opinion was a design to
create a problem inside the High Court premises, we are at a loss
to understand how a police officer of such a calibre as that of the
Commissioner of Police was not able to realize the game plan and
succumb to such a move, which had resulted in a very costly
havoc and has made an indelible black mark in the history of
Judiciary which can never be condoned irrespective of as to
whomsoever or at whose instance such a situation came to be
created. It cannot be said that an officer at the level of a
Commissioner of Police could not have visualized or anticipated a
situation of the magnitude to which the issue would have blown
up when somebody offered to surrender themselves against
whom there were cases pending for serious offences of even
Section 307 IPC right from the year 2001 onwards. In fact in the
documents filed at the instance of the police as found in
Respondent Volume II at pages 167 to 259, the various criminal
cases registered with different police station between the years
2001 to 2009, where all cases in which the accused were
advocates.
The said statement discloses that there were 13
cases against Mr.Vijendran, 7 cases against Pughazhendi, 7 cases
against Mr.R.Karuppan, 5 cases against Sengodi and 17 cases
against Mr.Rajani S/o Vijayakumar. Of those cases there were
88
cases in which charges were leveled under Sections 147, 323,
506 (ii) and even 307 IPC. When such overwhelming documents
disclose the pending criminal cases against some of the accused
of 17.02.2009 incident, it is strange that the Commissioner of
Police
could
not
even
visualize
or
anticipate
any
grave
consequence while accepting the offer of surrender by accused
advocates at B-4 police station.
We are convinced that the
Additional Commissioner of Police Mr.A.K.Viswanathan's stand
that he advised the Commissioner of Police not to entertain the
surrender inside the High Court Police Station would have been
true and we have to state that at least such an advice of his
immediate junior officer should have prompted the Commissioner
of Police not to venture any attempt to accede to the offer of
surrender by the accused themselves in the campus of a premier
institution of the State namely the High Court. It was very
unfortunate that the Commissioner of Police, who is stated to be
of a very high calibre to have taken such a foolhardy (recklessly
harsh) step and thereby brought (with utmost hesitation to state)
a lifelong shame to a prestigious institution namely the High
Court and the JUDICIARY, which is the last resort for any
common man to seek justice.
89
94. The Commissioner of Police relied upon the letter of the
Registrar General dated 18.02.2009, to contend that the police
was given a free hand to deal with the accused involved in the
occurrence inside the 3rd Court Hall on 17.02.2009. In fact what
all the Registrar General has communicated to the Commissioner
of Police in the said letter was that the concurrence of the
Registry was not required to register a criminal case but the
police should act on its own, in as much as, a complaint has
already been preferred. The Registrar General on behalf of the
High Court never gave a free hand to the Commissioner of Police
to behave in the manner in which he allowed his men to ransack
the whole premises and to state that he was only carrying out his
duties as a police officer in the matter of arrest of certain accused
who came forward to surrender which opportunity the police
wanted to grab, taking the letter of the Registry as a licence to
indulge in such an unpardonable exercise which has brought a
grave disrepute to an institution which has nurtured its reputation
for over more than one and half century.
95. Considering the status and position held by the
Commissioner of Police as head of the police institution of the city
of Chennai, we are not impressed with the stand taken by him
90
that though he was duly informed of the offer of certain accused
to surrender who are advocates and who were involved in a nasty
incident which occurred on 17.02.2009, inside the High Court
premises but yet he did not bother to handle the issue directly by
making
himself
available
on
the
spot
and
without
due
consultation with the Registry of this Court.
96. Going by the statement of the jurisdiction Joint
Commissioner of Police, by around 12.00 noon, the offer of
surrender came to be made by two of the accused advocates. If
really the Commissioner of Police had real concern any one would
expect him to rush to the spot at the earliest point of time and
deal with the issue directly without giving scope for anybody else
to mishandle it and thereby not only bringing disrepute to his
institution but also allow the course of action to result in an
unsavory situation on a premier Institution viz., the HIGH COURT
and making an indelible mark of disrespect for an indefinite
period to come.
97. In the various affidavits the Commissioner of Police
himself has made it clear that he was cautious enough to draw
more force apart from stating that there is a customary practice
91
for the force to allow for wait and watch period including
debriefing. It is quite apparent that the Commissioner of Police
was alive to the gravity of the issue and the attempt of the
accused advocates in offering themselves to surrender but yet he
would state as though the situation could be dealt with as if it
were like any other normal situation where any accused would
have offered to surrender themselves. It is very hard to believe
such a stand taken by the Commissioner of Police whose calibre,
the learned senior counsel would boast upon having regard to his
bright career growth all along.
Moreover the stand of the
Commissioner of Police in stating that instead of reacting to the
offer of surrender by making himself present on the spot and deal
with it directly, by his own conduct he has shown that he wanted
the
jurisdictional
Commissioner
of
Joint
Commissioner
Police
and
the
of
Police,
jurisdictional
Additional
Deputy
Commissioner of Police to handle along with all other officers
numbering not less than 16, among whom there were two
Additional Commissioner of Police, three Joint Commissioner of
Police, 8 Deputy Commissioner of Police and two Additional
Deputy Commissioner of Police, who were drawn into the High
Court campus and to remain present between 3.00 pm to 5.00
pm and as Commissioner of Police wanted to control the situation
92
by remote control.
The Commissioner of Police himself has
furnished the above particulars along with his report dated
18.03.2009, wherein according to his own statement at 9.00 am
147 policemen were brought in, which force was reinforced with
another 118 policemen at 2.30 pm and a further reinforcement of
officers and personnel to the tune of 26 was added at around
4.50 pm. Therefore as between 3.00 pm to 5.30 pm as many as
292 police personnel consisting of officers and policemen were
drawn apart from 130 personnel who were available on duty
attached with B-4 Police Station, in all an unusual strength of 421
policemen were drawn into the High Court campus solely at the
instance of the Commissioner of Police but yet he would state
that he left his office at Egmore at 3.52 pm, which enabled him
to reach the B-4 Police Station only at 5.00 pm.
98. Further in the affidavit dated 07.09.2009, in paragraph
24, the Commissioner of Police has referred to seven instances
which according to him were pressing issues that constrained the
police personnel and the officers to remain in the High Court
premises. The said issues were:
(a) The incident that took place on
04.02.2009, with arrest of some advocates
93
resulted
in
preventing
group
the
of
police
other
from
advocates
discharging
their duty.
(b)
The
advocates
choose
to
surrender when the High Court campus
was buzzing with activities and the police
could ill afford another violent attack by
advocates in or around the High Court
campus as the threat to the lives of huge
number of other people.
(c) The advocates who had attacked
an Assistant Commissioner of Police and
Dr.Subramaniam Swamy inside the 3rd
Court Hall would not hesitate to indulge in
violence though they were inside the High
Court campus.
(d) Some of those advocates had
already assaulted the Inspector of Police,
B-4 Police Station by hitting his leg with an
iron door.
(e)
The
advocates
damaged a Door Frame
had
already
Metal Detector
erected in the High Court premises as a
security measure and therefore they would
not hesitate to damage any other public
94
property and it was essential to ensure that
the heritage structure of the High Court
remains unscathed.
(f) The advocates who offered to
surrender
several
included
criminal
persons
cases
who
pending
had
against
them for grave criminal offences such as
rioting with deadly weapons, attempt to
murder, criminal intimidation, causing hurt,
wrongful
restraint,
assault
on
public
servant discharging his duty, negligent
conduct with respect to fire and destruction
of public property and therefore the police
could not afford similar violent conduct
inside the High Court campus.
99. Though everyone of the above instances stated by the
Commissioner of Police and his perception in that background
cannot be belittled, it is unfortunate that instead of taking a
decision which would have enabled the police to achieve the
objective he proceeded to take, the decision which totally
destroyed the purpose sought to be achieved was taken and
implemented to its full extent. Moreover, it was not as if that
consequence which had ultimately resulted due to the lathi
charge could not have been anticipated at all.
On the other
95
hand, at least two of the officers namely the Additional
Commissioner of Police and the Joint Commissioner of Police
(Central) stated to have felt that it was not prudent to accede to
the request for surrender inside the High Court campus as that
would create lot of complications. At least one amongst them
namely
the
Additional
Commissioner
of
Police,
Mr.A.K.Viswanathan has stated in more than one place in his
affidavit that he did caution the Commissioner of Police about the
imprudent step being taken by accepting the offer of surrender
and proceed with the arrest which advice was thrown to the
winds by the Commissioner of Police for reasons best known to
him.
100. It was a pity that while according to the Commissioner
of Police the threat was to the lives of huge number of people
and the High Court was bustling with activities since the
advocates started attending Courts after withdrawing the boycott
on 19.02.2009, instead of allowing such activities to remain
without any disturbance, the act of the police themselves in
having chosen to allow the process of surrender of accused to
take place in a more vulnerable situation that too by gathering
nearly 421 policemen, the Commissioner of Police has miserably
96
failed in his responsibilities and duty to protect the interest of
public and instead made himself responsible for the most
imprudent act of creating a situation of lawlessness which
ultimately resulted in very ghastly incident to take place inside
the High Court premises and thereby creating a blot on the
institution namely the Judiciary. We therefore hold that the root
cause for the unsavoury incident that took place on 19.02.2009,
was
the
promptitude
of
the
accused
Advocates
led
by
Mr.R.Karuppan who offered to surrender themselves. We further
hold that by the imprudent act of the police in having encouraged
the offer of surrender to take place insider the High Court
campus, the high level police officers, namely, the Commissioner
of Police, the Additional Commissioner of Police, the jurisdictional
Joint
Commissioner
of
Police
and
the
jurisdiction
Deputy
Commissioner of Police, sowed the seed for the ghastly incident.
As far as Question No.(i) is concerned, though as claimed by
Ms.R.Vaigai that the Judiciary is also entitled for the extent of
immunity i.e. Available to the Parliament cannot be accepted, in
the same breath, it will have to be stated that Judiciary as a
constitutional
machinery
is
entitled
for
higher
amount
of
protection and safety and therefore the other wings of the State
have to display utmost
restraint while carrying out their
97
operations inside the premises of the institution.
Consequently
when such other institution like police or executive want to deal
with the said institution, they are bound to get necessary
instructions and if necessary permission for carrying out any of
their activities which would otherwise cause prejudice to the
institution. We answer the Question Nos.(i), (ii) & (iii) as above.
We however hold that the allegation of the lawyers that there
was a conspiracy under the brand name of "Operation Black
Coat" is not made out.
QUESTION No.(iv) :101. It will have to be made clear that while deliberating on
this issue, this Court is not really concerned with the grievance of
any particular class of people.
As rightly pointed out by
Ms.R.Vaigai, learned counsel representing the lawyers, the
onslaught on 19.02.2009, was on the institution namely the
'JUDICIARY' irrespective of whatever grievance that existed
between the police on the one side and the lawyers on the other
side.
102. When we examine the aftermath of the incident, the
report of the Registrar General discloses that due to the incident
98
that occurred on 19.02.2009, the Court proceedings after 4.00
pm was disrupted and heavy debris including glass pieces found
strewn all over which had to be cleaned to ensure public safety.
The damaged vehicles were lying in a haphazard manner. The
High Court and the Subordinate Courts in the campus remained
closed
on
24.02.2009
20.02.2009
and
all
and
the
thereafter
Courts
in
on
the
23.02.2009
State
and
commenced
functioning only from 25.02.2009. The City Civil Court and the
Court of Small Causes and the other Courts located in those
buildings started functioning only from 02.03.2009.
Remand
orders were passed by the respective Judicial Magistrates by
visiting the prisons as the police refused to enter the Court
premises. The inspection carried out by the Committee and the
Sub-Committee constituted by the Full Bench revealed damages
to 131 vehicles and 139 persons most of whom were lawyers had
suffered injuries.
The damages caused to the High Court
building, City Civil Court building and Court of Small Causes
building is stated to be in the order of Rs.6,39,460/-. The injured
persons were disbursed with a sum of Rs.20,92,768/- towards
medical expenses and compensation apart from a sum of
Rs.10,79,497/- and Rs.1,18,330/- paid to M/s Appolo Hospital
and Life Line Hospital. A sum of Rs.10,60,333/- was stated to
99
have been disbursed to the owners of 55 four wheelers and 63
two wheelers and three bicycles.
103. It can be stated with authority that in the history of
judicial functioning, such a disruption of Court proceedings to the
magnitude to which it had taken place consequent to the
ghastly incident that happened on 19.02.2009, had not occured.
The factum of non-functioning of the whole of judicial institutions
throughout the State for at least three days only mean that the
judiciary was paralyzed and was made immobile for no fault of
it. Due to the non-functioning of the judicial forum and thereby
depriving of any common man to have access to the judicial
institutions for redressal of his grievance, to be stated in the
most humble manner was that the judiciary impliedly expressed
its helplessness to extend its helping hand to any one who was
really in need of judicial intervention seeking justice. Therefore,
when the consequence that resulted by virtue of the occurrence
that took place on 19.02.2009 is examined, there can be no two
opinion that whomsoever was responsible for creating such a
situation cannot be dealt with lightly or any leniency can be
shown to such person/persons as otherwise it would only give a
wrong signal that one can carryout any unsavoury operation of
100
very high magnitude unmindful of the consequences and can get
away with it by shifting the responsibility on others or by
referring to very many circumstances as the cause for such
ghastly incident.
104. The highest judicial forum of this State in whose
premises such a ghastly incident was allowed to take place
cannot be lightly ignored or dealt with, as it will not be in the
interest of public at large to allow any one who dealt with the
INSTITUTION in such a light hearted manner. In our considered
opinion, unless very drastic and deterrent action is taken on the
persons responsible for the occurrence that took place on
19.02.2009, the public faith on the institution would be totally
eroded and if the institution fails to deal with such persons firmly
or fails to deal with them in the appropriate manner, it would
completely shake the confidence of the common man who seek
reccour for all their other grievances in the normal day to day
life.
105. In the above stated background, we are constrained
to state that this Court has no hesitation to hold that the
Commissioner
of
Police
Mr.K.Radhakrishnan,
is
primarily
responsible while the responsibility of other high ranking officers
101
namely
the
Additional
Commissioner
of
Police
Mr.A.K.Viswanathan, the jurisdictional Joint Commissioner of
Police
Mr.M.Ramasubramni
and
the
jurisdictional
Deputy
Commissioner of Police Mr.Prem Anand Sinha were all equally
culpable for the gory incident which gripped the High Court
premises on 19.02.2009, at least between 12.00 noon and
around 6.30 pm, as well as on the subsequent dates namely
when the High Court did not function on 20.02.2009, 23.02.2009
and 24.02.2009 and when the Subordinate Courts inside the High
Court campus did not function on 20.02.2009 and 23.02.2009 to
27.02.2009.
106. As far as the Additional Commissioner of Police
Mr.A.K.Viswanathan is concerned, though we are inclined to
agree with his stand that he did advise the Commissioner of
Police not to accept the surrendering process offered by the
accused advocates, as that would create a serious complication,
as rightly pointed out by the Commissioner of Police in his
counter affidavit, there was no reason why he failed to stop that
imprudent move to take place. In the counter affidavit of the
Commissioner of Police dated 09.09.2009, which he filed in
response
to
the
affidavit
of
Mr.A.K.Viswanathan
dated
102
27.08.2009, in paragraph 9 the Commissioner of Police has
stated as under
“9. I submit that the assertion at
para-10 that Mr.A.K.Viswanathan called me
over the phone and suggested that it was
“prudent” to withdraw the force and that I
insisted that the force remain, is incorrect.
No
such
place.
telephonic
conservation
took
As he was the highest ranking
officer
General
of
the
of
rank
Police
of
and
Inspector
the
Chief
Operating Officer of the law and order
machinery
(that
designated
it
why
as
he
is
Additional
Commissioner of Police, Law & Order),
present in the spot he could have
withdrawn the force, if he had thought
that
it
was
prudent
to
withdraw.
Withdrawal of a force from a serious
law and order situation is a tactical
decision which can be taken only by an
officer
present
in
the
spot
and
handling the situation and no other
officer, however great he may be,
sitting at a different place cannot give
orders through remote control.
He
needed no direction from anybody, as he
was the best judge in the actual field
103
witnessing
the
events
personally.
His
further assertion at para 11 that the other
officers present also wanted to withdraw
the force within the premises is, as far as I
know, not correct. Further at no point of
time neither Mr.A.K.Viswanathan nor any
other officer had expressed any desire for
the
force
to
withdraw,
which
they
themselves were competent to do so as
being senior supervisory officers present on
the spot witnessing the events and were
hence the best judges of police action to be
taken as of on that day.” (Emphasis added)
107. We fully concur with the stand of the Commissioner of
Police on the lines stated above as regards the power of the
Additional Commissioner of Police who was the next highest level
officer who was actually monitoring the whole operation inside
the High Court premises. He cannot he heard to say that when
the Commissioner of Police was the highest authority and as a
less higher authority he can remain as a silent spectator when
the ghastly incident was taking place which could have been
controlled and that fearing the command of the highest officer,
he allowed the ghastly incident to develop on the ground that he
is merely a subordinate to the Commissioner of Police. Such a
104
stand at the instance of the Additional Commissioner of Police
can never be expected of or accepted for mere statement. We
can only call such a stand of the Additional Commissioner of
Police as a feeble attempt to shirk his responsibility reposed in
him as an officer at the level of Additional Commissioner of
Police. We are not therefore inclined to accept the stand of the
Additional Commissioner of Police in trying to throw the entire
blame on the Commissioner of Police and thereby escape from his
responsibilities. Therefore, we have no hesitation to hold that he
is also equally responsible along with the Commissioner of Police.
108. Ms.Vaigai, the learned counsel representing the
lawyers referred to a decision reported in 1898 ILR (Mad) 21
(Queen-Empress Vs. Subba Naik and Others). That was a
judgment of pre-independence period.
However, we find the
ratio of the said decision applicable for all times to come. That
was a case where there was a dispute between two co-widows
about the enjoyment of certain field. Two of the witnesses along
with their coolies went to the field in question and started
harvesting the crops on behalf of the junior widow stated to have
been sown by the senior widow. After harvesting of the crops
started, the prisoners who were Station House Officer and
105
constables and a private watcher appeared on the scene armed
with guns. The first prisoner ordered the reapers to desist, which
was resisted. The coolies however continued with the harvesting
operation. Thereafter, at the instance of the first prisoner one of
the constables fired in the air. Some of the coolies ran away
while the rest of the coolies continued with the harvesting
operation.
There was a second order for shoot by the first
prisoner, which was obeyed by the second prisoner and one
Sankaralingam was mortally wounded.
The other prisoner
knocked down one of the witnesses with stick and stabbed him
with
a
weapon
and
injuries
were
however
not
serious.
Prosecution case was that the deceased attempted to persuade
the coolies not to stop the harvesting which was the reason for
the second prisoner to shoot
him.
In the above stated
background the Court held as under at page 251 :
”We are of the opinion that the
accused
police
officers
cannot
shield
themselves on the plea that they were
acting in good faith, for nothing is said to
be done in good faith which is one without
due care and attention, and we are of the
opinion that neither the first nor the
second
accused
necessary
for
believed
the
public
that
it
security
was
to
106
disperse such an assembly by firing on
them.”
The Court went on to state again:
“The decree of force which may be lawfully
used in the suppression of an unlawful
assembly depends on the nature of such
assembly, for the force used must always
be moderated and proportioned to the
circumstances of the case and to the end
to be obtained. (Lord Bowen’s Report on
the Colliers” Strikes and Riot, --1893.)”
Ultimately the Court held:
“We are of the opinion that the second
accused is not protected in that he obeyed
the orders of his superior officer.
The
command of the head constable cannot of
itself justify his subordinate in firing if the
command was illegal, for he and the head
constable had the same opportunity of
observing
what
the
danger
was,
and
judging what action the necessities of the
case required.
We are of opinion that
the order the second accused obeyed
was manifestly illegal, and the second
accused must suffer the consequence
of his illegal act…..” (Emphasis added)
107
109. When we come to the role played by the jurisdictional
Joint Commissioner of Police Mr.M.Ramasubramani, who is also
an IPS officer and who was really responsible for the root cause
for the incident to get triggered of at 12.00 noon and to its
ultimate conclusion around 6.30 pm. He was on the spot right
from 9.00 am onwards. It was he to whom the two advocates of
whom one had already
17.02.2009,
incident
been arrayed as accused in the
namely
Mr.Vijendran
approached
and
expressed the desire of 15 accused advocates to surrender and
he
wanted
the
names
of
all
of
them.
It
is
really
not
understandable how an IPS officer of his experience was not able
to assess the real situation, who has been working in the field
and to state that he discussed with the advocates and furnished
the list and then instead of proceeding with the debriefing at B-2
Police Station took the entire force into the High Court campus
i.e. to the B-4 Police Station and indulged in heated dialogue with
the accused advocates who approached under the leadership of
Mr.R.Karuppan.
different
At least when the situation was taking a
shape, namely
that
while
in
the
beginning,
the
representation of the accused advocates were that they wanted
to merely surrender, at the B-4 Police Station they shifted their
stand by insisting for registration of a criminal case as against
108
Dr.Subramaniam Swamy, it is quite strange that the jurisdictional
Joint Commissioner did not even think that the situation was
slipping out of his control and having regard to the vulnerable
atmosphere in which the whole incident was taking place,
prudence demanded a different step and avoid any clash inside
the premises. Instead, a perusal of his affidavit discloses that
according
to
him
had
he
abstained
from
arresting
the
surrendering advocates, he would not only be accused of
dereliction of duty but would have invited criticism from all
quarters. Such a statement has been made in the affidavit after
stating in unambiguous terms that tension was brewing and that
oral abuses were being made against the police. When ultimately
at the end, the jurisdictional Deputy Commissioner of Police
Mr.Prem Anand Sinha declared the assembly as unlawful and
ordered a lathi charge. At least in paragraph 20 of the affidavit
the Joint Commissioner of Police would state that he was
endeavoring to place before this Court the totality of the events
which was brought about by a minuscule group of advocates
whom the peace loving majority advocates failed to contain. It is
also stated that he was also aware of the names of all the
advocates who threw stones at the police and kept on provoking
the police with obscene words and gestures, but he was not
109
inclined to disclose their names in order to save them from
embarrassment.
110.
Such
a
statement
of
the
jurisdictional
Joint
Commissioner of Police makes a poor reading of his application of
his sense of discretion while handling a situation, which was not
conducive to contain.
In paragraph 25 of his affidavit dated
07.09.2009, he would state that the act of lathi charge held on
19.02.2009, cannot be examined minutely in order to find out its
justification or otherwise and that for the excesses committed by
individual policemen, he cannot be vicariously held liable and that
such individuals can be proceeded against in accordance with law.
111. Again in paragraph 28, he would categorically state
that being a subordinate officer to the Additional Commissioner of
Police and Commissioner of Police in the Chennai City Police
hierarchy and in the presence of senior officers, he was not in a
position to take a decision on his own. As in the case of the
Additional
Commissioner
of
Police,
the
jurisdictional
Joint
Commissioner of Police was also attempting to wriggle out of the
situation in which he is placed.
110
112. As stated by us earlier, first and foremost, as
jurisdictional Joint Commissioner of Police, he should have the
courage to own his responsibility for whatever that happened on
19.02.2009. His stand that he was subordinate to the Additional
Commissioner of Police and Commissioner of Police cannot be
accepted, in as much as, being an IPS officer and at the level of
Joint Commissioner of Police, it was never expected of an officer
of his level to make any attempt to get rid of the situation by
attempting to throw the responsibility on his higher authorities.
Like that of the Additional Commissioner of Police, as Joint
Commissioner of Police of the concerned jurisdiction, it was his
responsibility to have appraised the Commissioner of Police and
insisted for not proceeding with the arrest and avoided any
mishap from taking place inside the High Court premises.
The
sensitivity of which premises was very well known to him as
could be seen from his own assessment of the nature of activities
being carried on.
Therefore it is too late in the day for the
jurisdiction Joint Commissioner of Police Mr.M.Ramasubramani to
merely come forward with an offer of apology in order to relieve
him of his responsibility. Having regard to the magnitude of the
havoc caused which we have elaborately stated in the previous
paragraphs and the onerous responsibilities reposed in the said
111
officer as jurisdictional Joint Commissioner of Police, we hold that
he was also equally responsible for the occurrence that took place
on
19.02.2009,
as
well
as
the
subsequent
events
which
immobilized the functioning of the Courts both in the High Court
and the Subordinate Courts.
113. As far as the jurisdiction Deputy Commissioner of
Police Mr.Prem Anand Sinha is concerned, he is also an IPS
officer like that of the jurisdiction Joint Commissioner of Police.
He was also present and was participating in the occurrence right
from the beginning till its end.
In fact the Commissioner of
Police, the Additional Commissioner of Police and the Joint
Commissioner of Police have stated in unambiguous terms that it
was he who declared the mob as unlawful assembly and also
ordered for lathi charge. When according to the Commissioner of
Police, Additional Commissioner of Police and jurisdictional Joint
Commissioner of Police, his decision to declare the mob as
unlawful assembly was left with him, as a responsible IPS officer
he ought to have taken the decision on his own instead of meekly
surrendering his powers and jurisdiction to his higher authorities
and by ordering a lathi charge. Being an IPS officer who occupy
a very high status in the police force and before being actually
112
assigned with any field work are imparted with intensive training
for considerable years, the jurisdictional Deputy Commissioner of
Police ought to have assessed the situation, the place, the
consequence that would arise, the historical background of the
parties who were involved in the offence while taking a decision.
Though he may be 4th in rank in the hierarchy, after the
Commissioner of Police, Additional Commissioner of Police and
jurisdictional Joint Commissioner of Police, he being a police
officer belonging to the All India Service, he should not have
ventured to indulge in an act which would bring grave disrepute
to a constitutional machinery which was not in the interest of the
public at large. One cannot expect an IPS officer in the level of a
Deputy Commissioner of Police to take the stand that there was a
group discussion amongst them and ultimately as jurisdictional
Deputy Commissioner of Police, he declared the mob as unlawful
assembly and ordered for consequential lathi charge.
114. Therefore we hold that the said officer is also equally
responsible in the same proportion like that of the other officers
namely the Commissioner of Police, Additional Commissioner of
Police and the jurisdictional Joint Commissioner of Police for the
unsavory incident that happened on 19.02.2009, as well as for
113
the subsequent consequences which paralyzed the functioning of
the judiciary through out the State.
115. While holding so, we also wish to state that even while
invoking the power relating to unlawful assembly as prescribed
under Chapter X of the Code of Criminal Procedure, the various
prescriptions
contained
in
the
said
provisions
have
been
completely thrown overboard. Section 129(1) falling under the
said Chapter makes it clear that any Executive Magistrate or
officer in charge of a police station or, in the absence of such
officer in charge, any police officer, not below the rank of a SubInspector, can disperse the unlawful assembly which is likely to
cause a disturbance of the public peace. Sub-Section (2) to
Section 129 states that for the purpose of dispersing such
assembly one can even resort to arrest or confine the persons
who form part of the unlawful assembly or by use of force.
Under Section 129, the use of armed force is not provided for.
Therefore, as the first step, the use of such force can by no
means be by way of lathi charge. Without the aid of any armed
force only the officer should attempt to disperse any such
assembly. Since arrest of unruly mob is part of Section 129(2),
an attempt should have been made to identify such key persons
114
who are indulging in any unlawful assembly and make an attempt
to arrest them without resorting to any other measure.
The
paramount purpose is to prevent anybody’s attempt to disturb
public peace. Therefore mere law and order cannot be a situation
for invoking the provisions contained under Chapter X.
116. Use of armed force can be resorted to only by
invoking Section 130 of the said Chapter. Here again, Section
130(1) makes it clear that only if such assembly cannot be
otherwise dispersed and when it is necessary for the public
security that it should be dispersed and the Executive Magistrate
of the highest rank who is present may cause it to be dispersed
by the armed forces. Therefore, a reading of Sections 129 and
130(1) together makes it crystal clear that dispersement of any
unlawful assembly should be resorted to without any scope for
any untoward incident taking place. It must be stated that when
any such group of persons assemble and thereby providing scope
for declaring it as an unlawful assembly, the whole endeavor of
the Executive Magistrate or any other officer of the highest rank
who is present at the spot should adopt ways and means which
would cause the least effect in the dispersal. It can therefore be
stated
that
at
the
very
first
instance,
it
would
be
the
115
responsibility of the police officer of the highest rank to ensure
that no such unlawful assembly is ever allowed to gather
especially when there was any scope for such assembly in a
vulnerable place like that of the High Court and that too on a day
when the lawyers resumed their Court work after more than 20
days of boycott.
117. Furthermore under Section 130(3), it is specifically
prescribed that even when any such officer in command of the
armed force that requisitioned the use of little force and do as
little injury to person and property in the process of dispersal or
arrest or detention of such persons.
118. When we examine the implication of Section 130(3),
at the outset, it is to be pointed out that it was not disclosed
before us as to who were all the officers in command of any of
the armed force, which were drawn into the High Court premises
on that day. If any violation of the prescription of Section 130(3)
is to be examined, it will be well nigh possible for any one to pin
point to the concerned officer in command who can be held
responsible for any excess in carrying out the process of lathi
charge by the armed forces. The report of the Registrar General
116
which we have stated in detail discloses the extensive damages
caused to the vehicles parked inside the campus numbering more
than 100 and the injuries caused to advocates, staff and others
numbering nearly 139 apart from the damages caused to the
buildings of the High Court, Small Causes Court, City Civil Court,
library sections of the Law Association and Madras High Court
Advocates Association. When Section 130(3) is read along with
the Drill and Training Manual it is apparent that there cannot be
an indiscriminate hitting of any person all over the body and wild
destruction of properties. When we viewed the CD placed before
us by the Commissioner of Police, the Additional Commissioner of
Police as well as at the instance of the Advocate Associations, it
was quite visible that the armed forces which were let loose on
that day were in a hitting spree. They did not spare even a van,
which carried the symbol, i.e. “ePjpj;Jiw (Judiciary)” the vehicle
which was provided by the State Government for the subordinate
Judicial Officers to reach the Court and get back home. In fact
one of the Court Halls of the Small Cause Court namely the XII
Court Hall was also damaged in the process of lathi charge.
Though the police officers would claim that they were only trying
to chase the advocates, the same was not true. The beating of
the advocates by surrounding them as a group or any individual
117
advocate is quiet visible in the videograph which is highly
shocking. The photographs placed before us discloses the extent
of damage caused to the library books shelves and the vehicles
which only shows that as part of the process of lathi charge
uncontrolled violence was unleashed inside the premises and
since there was no officer in command, we can only hold that the
very same four officers namely the Commissioner of Police, the
Additional
Commissioner
Commissioner
of
Police
Commissioner of Police
of
Police,
and
the
the
were squarely
jurisdictional
jurisdictional
Joint
Deputy
responsible for
the
violation of the provisions contained under Sections 129 and 130
of the Cr.P.C.
119. Under Section 131, also falling under Chapter X, it is
stated that the use of armed force for the purpose of dispersing
of any unlawful assembly can be carried out by an officer in
command. While using any armed force it should be carried out
under the direct supervision of the commandant of that force and
not by any other officer. Whereas on 19.02.2009, it is not the
case of the above four police officers that there was any
commandant to control the armed forces. On the other hand
admittedly it was the above four officers who directly used the
118
armed forces and thereby providing scope for such force to
indulge in uncontrolled action of lathi charge and thereby causing
extensive damages to men and material. In fact the total extent
of compensation disbursed from the funds furnished by the State
Government was in the order of Rs.50,41,008/-, it can be
therefore visualized as to the extent of damages that had been
caused to men and material by the use of force.
120. With that when we examine the immunity provided
under Section 132 falling under Chapter X, it specifically states
that no prosecution against any person for any act purporting to
be done under Sections 129, 130 and 131 shall be instituted in
any Criminal Court. In the foremost, sub-section (2)(a) makes it
clear that in order to avail such immunity, the officer concerned
should have acted under those Sections in good faith. In fact
Sections 132(2)(a) to (d) makes it clear that in order to claim
protection under the substantive part of Section 132(1) action on
good faith is paramount or such member of the armed force does
any act in obedience of any order which he is bound to obey.
Section 132 therefore makes it clear that good faith should be
the basis for an officer or a member of the armed force to claim
any benefit provided under the said Section.
119
121. Having regard to our conclusion in the earlier
paragraphs where we have held that the Commissioner of Police,
the Additional Commissioner of Police, the jurisdictional Joint
Commissioner
of
Police
and
the
jurisdictional
Deputy
Commissioner of Police were squarely responsible for the ghastly
incident, we hold that having regard to the manner in which they
exercised their power while ordering lathi charge by invoking
Sections 129 to 131 of the Code of Criminal Procedure, we have
no hesitation to hold that there was absolutely no faith in their
conduct much less good faith in order to enable them to avail the
protection under Section 132(i) of the Code.
122. Though we are conscious of our limitation while
dealing with Section 132 of the Code, in as much as, we are not
presently dealing with any prosecution as against those officers
but yet for the limited purpose of finding out and identifying the
officers responsible, we have to necessarily examine the defence
put forth before us at the instance of the above police officers by
Dr.Rajeev Dhavan by relying upon the said provisions. In any
event, any conclusion of ours in relation to the said provision
should be exclusively for the purpose of passing orders in these
writ petitions, in as much as, our decision is based on the
120
materials, which were placed before us by the respondents
themselves.
123. In this context, it will be worthwhile to refer to certain
decisions placed before us by Dr.Rajeev Dhavan as well as
Ms.R.Vaigai.
124. Dr.Rajeev Dhavan relied upon the decisions reported
in 155 (2008) DLT 209 (Police Commissioner Vs. Yashpal
Sharma)
and
MANU/DE/2653/2007
(Commissioner
of
Police Vs. Manoj Sharma) for the proposition as to what
constitutes reasonable force. In the above referred to decisions it
was held whether the force used in a particular case, to disperse
such demonstration, is reasonable or not would depend upon the
facts and circumstances of each case.
As to how much force is
necessary to disperse the unlawful assembly should be left to the
decision of the Executive Magistrate or the police officer
concerned to take a decision on the spot assessing the situation
and such assessment of the situation has to be left to the officer
concerned. In fact in the decision relating to Commissioner of
Police Vs. Manoj Sharma (MANU/DE/2653/2007), it is held
“……In a situation of maintenance of law
121
and
order
decisions
are
to
be
taken
instantly and there is not enough time for
reflection. Such decisions are to be taken
by the officer in-charge of the situation…….
”
125. The above referred to decisions will be of no
assistance to the respondent police.
As held by us earlier, the
fault of the respondent police is in having allowed the offer of
surrender by the accused advocates to drift to a detrimental
situation
and
thereby
made
it
vulnerable
for
the
police
themselves to get rid of it and in that process, the unprecedented
damage was caused to a constitutional machinery which was
totally unwarranted and uncalled for.
126. Viewed in that respect, it was immaterial to examine
the justification for ordering lathi charge by relying upon the
situation, which prevailed.
In our considered opinion, the
situation itself was created by the imprudent action of the
respondent police officers and therefore the justification of their
conduct cannot be judged based on the ultimate action but had
to be necessarily judged based on the situation that prevailed at
the very inception namely at 11.30 am and thereafter when the
122
respondent police officers paved the way for any one to create
the said unpleasant situation.
127. It will be worthwhile to refer to Section 52 of the
Indian Penal Code, which defines ‘good faith’. Section 52 reads
as under:
“52. Nothing is said to be done or believed
in ‘good faith’ which is done or believed
without due care and attention.”
128. In this context, we can also usefully refer to the
decision of the Hon’ble Supreme Court reported in (2001) 2 SCC
171 (S.K.Sundaram In Re.), paragraph 28 and 29 of the said
decision reads as under:
“28.
The
criminal
expression
jurisprudence
“good
has
faith”
a
in
definite
connotation. Its import is totally different
from saying that the person concerned has
honestly believed the truth of what is said.
Good faith is defined in Section 52 of the
Indian Penal Code thus:
“52. Nothing is said to be
done or believed in ‘good
faith’
which
is
done
or
believed without due care and
attention.”
123
29. See the language of the law in this
regard.
It starts in the negative tone
excluding all except what is allowed to be
within its amplitude. Insistence sought to
be
achieved
through
the
commencing
words of the definition “nothing is said to
be done or believed in good faith” is that
the
solitary
item
included
within
the
purview of the expression “good faith” is
what
is
done
attention”.
with
“due
care
and
Due care denotes the degree
of reasonableness in the care sought to be
exercised.
In
Black’s
Law
Dictionary,
“reasonable care” is explained as
“such
a
degree
of
care,
precaution, or diligence as
may fairly and properly be
expected or required, having
regard to the nature of the
action, or of the subjectmatter
and
circumstances
the transaction.
the
surrounding
It is such
care as an ordinary prudent
person would exercise under
the conditions existing at the
time he is called upon to
act”.”
124
129. Therefore in order to establish good faith one will have
to show his previous conduct of due care and attention. When we
apply the above ratio to the facts of this case, our analysis to the
decision making process applied by the Commissioner of Police,
Additional
Commissioner
Commissioner
of
Police
of
and
Police,
the
jurisdictional
jurisdictional
Joint
Deputy
Commissioner of Police makes it clear that there was total lack of
proper care and caution taken while taking a decision. Since we
have elaborately dealt with their conduct right from the initial
stage of offer of surrender and the ultimate lathi charge ordered,
we are convinced that there was total lack of due care and
indiscreet decision taken unmindful of the place, persons, time
and the necessity for taking such a decision. It was not the case
that the officers were totally kept in dark about any of the prior
incidents in which the concerned persons were involved or
situation that was prevailing on that date namely 19.02.2009,
where it can be said that resort to lathi charge was imminent and
it was unavoidable at that point of time. On the other hand our
discussion lead us to hold that instead of preventing any
untoward incident taking place inside the High Court campus, by
the foolhardy act of the police officers themselves a piquant
125
situation was created and in order to guard themselves and them
alone; not any public or other innocent persons; a resort was
made to the extreme step of lathi charge in such an extensive
manner which can never be called as one carried out in good faith
or that there was due care or attention made in order to enable
them to seek protection under Section 132(i) of the Code.
130. In this context it will also be appropriate to refer to
Chapter XXXIX of the Police Standing Order and PSO 699(3)(a),
703(2)(h)(i)(j), 703(3) and 703(4)(e) which are relevant which
reads as under:
“PSO 699. Preventive Action:
(1) ***
(2) ***
(3) (a) All public officers shall consider it
their duty to do everything that is
possible for the removal of causes of
friction,
foster
communal
good
or
relations
otherwise,
and
to
friendly
feelings between different sections of
the
public,
to
take
all
possible
precautions to prevent disorders and to
spare no efforts in bringing disorders
under control with the least possible
delay. There should be no hesitation in
126
taking disciplinary action against any
Government servant who is guilty of any
willful neglect of duty or who contributed
openly or covertly to the origin or the
continuance of the tension.”
PSO
703.
Dispersal
of
Unlawful
Assemblies:
(1) ***
(2) (h) If the members of the unlawful
assembly do not disperse, the Executive
Magistrate or the senior most Police
Officer present in the absence of the
Executive Magistrate shall direct the
Police to use force, that is necessary for
the purpose. The nature of force to be
used, tear gas, lathi cane charge or
water jet and the method of quantum of
force to be used should be decided by
the senior most Police Officer present on
the spot.
(i) If the crowd refuses to follow the
lawful instructions to disperse, the riot
flag should be raised, the attention of
the mob drawn through a bugle call with
long blast and a clear warning that force
would be used to disperse them will be
given
through
megaphone.
The
operation will commence if the mob
refuses to heed to the warning.
127
(j) Officers commanding police parties
will on every occasion when employed in
the suppression of a riot of enforcement
of the law, ensure that the fullest
warning is given to the mob in a clear
and distinct manner before any order is
given to use tear gas or lathi/cane or
fire arms and to use the most effectful
means to explain before hand to the
people opposed to them, in the event of
the Police party ordered to fire that the
fire will be effective.
(3) If the crowd becomes defiant tear
gas should be used effectively.
If this
becomes in fructious then lathi cane
charge can be made. If the crowd is still
defiant resort, may be had to the use of
fire arms.
(4) (3) If water jets or tear gas fail to
disperse the mob, lathi cane charge
should be ordered. Lathi/Cane charges
should not be attempted if the strength
of the Police force is not adequate to
create an effect on the crowd and the
crowd is likely to overwhelm the Police
party easily. The personnel engaged in
the lathi/cane charge should be under
the proper control and the charging
should cease as soon as the desired
128
objective is achieved.
The procedure
laid down in the Drill and Training
Manual will be followed. Care should be
taken to prevent the lathi/cane sections
getting separated from the main party
and the Commander.”
131. Under the Tamil Nadu City Police Act, 1888 in Section
3 the expression Commissioner is defined which means the
Commissioner of Police for Madras referred to in Section 5.
Under Section 5, it is stated that the administration of the Police
of the City of Madras shall be vested in an officer to be styled the
Commissioner of Police for Madras.
132.
The
Joint
Commissioner
of
Police,
Deputy
Commissioner of Police and the Assistant Commissioner of Police
are appointed by the Government in exercise of power vested
with it under Section 6 of the Tamil Nadu City Police Act. Under
Section 7 of the said Act, the Commissioner of Police by virtue of
his office, is designated as Executive Magistrate for the purpose
of the Code of Criminal Procedure and vested with powers as an
Executive Magistrate.
129
133. On behalf of the respondent police officers Dr.Rajeev
Dhavan in his submissions contended that the resort to lathi
charge became imminent since the threat perception prevailing
on that day necessitated such an action. In support of the said
submission, the learned senior counsel wanted to rely upon the
various incidents of advocate excess in and around the High
Court campus. The learned senior counsel referred to the listed
out cases in pages 165 to 259 of Respondent Vol-II.
134. According to the learned senior counsel there were as
many as 92 criminal cases booked against several advocates
between the years 2001 to 2007; the recent clash between two
group of law college students on 12.11.2009; the incident that
took place in the Court of the Acting Chief Justice on 29.01.2009
and the 5th Court presided over by Mr.Justice S.Manikumar; the
hijack of MTC bus by advocates on 30.01.2009; the burning of
the portrait of Dr.Subramaniam Swamy in the course of the
demonstration by about 50 advocates on 03.02.2009; the looting
of a cycle shop (Bombay Cycle Mart) opposite to the High Court
campus alleged to have been done by the advocates on
04.02.2009; the burning of Congress Party flag and portraits of
Congress leaders in the High Court campus by about 100
130
advocates headed by one Mr.Kanakraj on 11.02.2009; the
procession taken out by advocates within the High Court campus
and burning of the Congress party banner on 12.02.2009, headed
by Mr.Kanakraj and the procession taken out by 75 advocates on
the same date from the High Court and their attempt to lay siege
to
the
Army
Headquarters
at
Chennai;
the
incident
on
13.02.2009, by two groups of advocates headed by Mr.Kanakraj
and Rajnikanth in the procession to picket the Central Railway
Station; burning of the photos of Ms.Sonia Gandhi and Sri Lankan
President within the High Court campus by 20 advocates on
16.02.2009 and also burning of Election Photo Identity Cards by
35 advocates renunciating their Indian Citizenship apart from
burning the photos of Ms.Sonia Gandhi.
135. By referring to the above, the learned senior counsel
would contend that when such a high amount of threat
perception was prevailing which was assessed by the police, it
cannot be held that the situation did not warrant a lathi charge.
The learned senior counsel also placed reliance upon (1997) 7
SCC 91 (Amitabh Bachchan Corporation Ltd. Vs. Mahila
Jagram Manch) for the proposition that the Court cannot
substitute its own judgment for the subjective satisfaction of the
131
police officer who was in the midst of a grave situation and was
trying to maintain law and order. With reference to the above
proposition of law there can be absolutely no quarrel, but even
while applying the above principle to the facts of this case, we
have only held that the concerned police officers miserably failed
to thwart the incident of such a magnitude over which they had
absolute control at the very inception namely at 11.30 am, when
the threat perception relating to the visit of Dr.Subramaniam
Swamy came to an end and the entire armed force retired to B-2
Police Station for debriefing.
136.
In
our
considered
opinion
the
conduct
of
the
concerned police officers in having entertained any proposal at
the instance of the accused advocates on 17.02.2009, was wholly
an imprudent conduct which triggered the whole ghastly incident
for which they and they alone were squarely responsible. It can
never be held that the various past incidents which occurred
between 2001 and 2008 or the incidents occurred between
29.01.2009 to 17.02.2009, can be construed as cause of threat
perception to hold that that was the basis for ordering the lathi
charge. Such a submission of the learned senior counsel cannot
be accepted in as much as the threat perception in order to
132
justify any lathi charge should have developed on its own at the
spot and in order to control such a perception it became
imminent for the police to resort to lathi charge. By no stretch of
imagination it can be said that all the incidents that happened
prior to 19.02.2009, was brewing and was existing in an
uncontrolled manner, in order to state that on 19.02.2009 any
threat perception was prevailing either to the litigant public or to
the other advocates and that the police had no other option
except to resort to lathi charge on any unruly mob. On the other
hand even according to the Commissioner of Police and other
police
officers
nothing
untoward
happened
when
Dr.Subramaniam Swamy visited the High Court to attend two of
the cases i.e. one before the Bench headed by the Hon’ble Acting
Chief Justice and the other in the 5th Court before Mr.Justice
S.Manikumar. After attending to those cases, he also peacefully
left the High Court campus by 11.30 am and there was no
incident worth mentioning even thereafter since the very fact that
the jurisdictional Joint Commissioner of Police withdrew the entire
police force to B-2 Police Station for debriefing was proof positive
to support the said conclusion.
133
137.
Any
amount
of
assertion
on
the
part
of
the
Commissioner of Police, the Additional Commissioner of Police,
the jurisdictional Joint Commissioner of Police, or jurisdictional
Deputy Commissioner of Police, in attempting to portray a picture
of threat perception was wholly baseless and does not merit any
consideration.
138. In fact though the various cases as between 2001 and
2009 have been listed out before us in Page Nos.167 to 259 of
the Respondents Volume – II, we are at a loss to understand as
to how and why the cases pertaining to the years 2001 onwards
have not made any progress at all especially when in many of the
cases, the charges are for grave offences such as rioting with
deadly weapons, attempt to murder, criminal intimidation,
causing hurt, wrongful restraint, assault on public servant
discharging his duty, negligent conduct with respect to fire and
destruction of public property. The argument therefore does not
stand to any reason.
139. A perusal of the list of cases in pages 167 to 259 of
Respondent Vol-II, shows that almost all the cases were either
under investigation or pending trial. If the police authorities were
134
keen or alive to such criminal cases pending against the
advocates which caused concern, it is hard to believe that a case
of the year 2001 was still under the investigation of the police
authorities which means that no final report was filed. Even in
respect of those cases where charge sheets have been filed they
are pending trial for more than 6 to 7 years. That only shows
total lack of interest shown in dealing with the criminal cases
launched against the advocates for reasons best known to the
concerned police authorities.
140. It is not the stand of the respondent police that there
were any other impediment or court orders in all those cases
which tied their hands from proceeding with the investigation,
filing of final report and conduct of trial.
When that is the
interest shown in respect of those good number of cases, we are
not in a position to accede to the submission of the learned
senior counsel made on behalf of the respondent police officers
that those large number of pending cases should be construed as
a
threat
perception
in
order
to
justify
their
conduct
on
19.02.2009. Therefore, the said contention put forth on behalf of
the respondent police officers cannot also be accepted.
135
141. In order to justify the conduct of the respondent police
officers in having acceded to the offer of surrender reliance was
placed upon the decision reported in 1995 Cri.L.J. 1956 (In Re:
Rajendran and others) wherein it has been held as under in
paragraph 69:
“69. Hence it may be, that the police officials
have a right to arrest offenders, anywhere it
will even be possible in the event of surrender
by any of the offenders before Court, for, the
police to seek police custody for the purpose
of interrogation.
It could have been, easily
stated by the police officers, in the instant
case, that they were expecting, to arrest
Thiru. Natarajan and a part of apprehension,
after initial arrest, had taken place inside the
Court
campus.
Police
officers
must
have
intimated to the Senior Magistrate about the
closure
of
northern
gate
fully
and
the
southern gate partially and the purpose for
which they had closed the gates. They must
have equally informed the other heads of the
department, in the variety of officers situated
in that campus. If there is an emergency, the
police can certainly act, without forwarding
prior intimation, but even then they would
certainly owe a duty to inform the concerned
officers of Court as well as other officers soon
136
thereafter about the closure of the gates. In a
situation, emergent and the reason, that led
to such closure.”
142. Even going by the ratio laid down in the said decision,
it has been held therein that whether the arrest is taking place
inside the Court campus due intimation to the concerned officers
should be made.
For an arrest in the normal course in any
criminal case such a pre-condition is called for even in the
perception of the police officer when an extraordinary situation
was prevailing for quite a long time prior to 19.02.2009, we
wonder how an unilateral decision was taken by the police
officers to resort to arrest certain accused who were stated to
have volunteered to surrender but did not carry out their original
offer but were taking a different stand at different point of time
but yet at no point of time the police officers though it fit even to
intimate the Registry, leave alone seek the permission of the
Hon’ble Acting Chief Justice to resort to such an extraordinary
step. In our view, the failure of the respondent police not to
intimate and get necessary clearance from the Registry and the
Hon’ble Acting Chief Justice was a grave blunder committed by
them which was one of the causes for the ultimate havoc that
137
happened on that day. In fact in the order dated 19.02.2009,
the Full Bench expressed its deep anguish by stating with what
authority the police in such large number entered the campus for
the purpose of effecting an arrest and the ultimate indiscriminate
lathi charge resorted to inside the campus. The stand of the
respondent police in relying upon the letter of the Registrar
General dated 18.02.2009, can be of no avail in as much as the
said letter never granted a carte blanche to act in any manner
they liked in the matter of dealing with the accused advocates or
for that matter against any other accused inside the Court
campus.
Though the submission of Ms.R.Vaigai for a total
immunity as has been provided for Parliament for which separate
rules and regulations have been prescribed cannot be applied for
other institutions including the judiciary, it cannot be stated that
in the absence of any such provisions statutory or otherwise, a
prime institution like that of a High Court which is a constitutional
machinery can be treated by the police authorities like any other
public place and carry on with any activities which would bring
grave disrepute to such a prime institution and that too without
bringing it to the notice of the concerned authorities of that
institution, leave alone without prior permission.
138
143. In fact when the unsavory incident took place on
17.02.2009, inside Court Hall No.3, these very same officers
thought it fit to meet the Hon’ble Acting Chief Justice and the
other officials of the Registry even for registering a case against
the concerned accused advocates. When the very same police
officers were aware that such a step was required when it comes
to the question of carrying out their operation relating to an
incident that took place inside the High Court campus, it is not
known how everything was given a go bye in respect of an
incident which was gaining grave momentum right from 12.00
noon onwards and with reference to which nothing was brought
to the notice of the Court till the whole episode was completed at
around 6.00 – 6.30 pm and whereafter the Commissioner of
Police thought it fit to meet the Hon’ble Acting Chief Justice.
144. We are not for a moment suggesting that even if a
gross crime takes place inside the campus which warrant the
interference of police, the police should sit quite and seek for the
permission before taking up any action to prevent any such crime
taking place or perpetration of any such a crime.
139
145. In fact when reference was made to an order of this
Court in the case relating to Law College incident, that was a
converse case where the police remained a silent spectator when
a ghastly crime was being committed just in front of the police
force but yet none of the police personnel including an Assistant
Commissioner of Police though it fit to interfere and prevent such
a crime of grievous assault on one single individual by a group of
individuals. On that occasion also, the police miserably failed to
assess the situation in the proper perspective while exercising
their powers.
The reliance placed upon the said decision
therefore does not support the stand of the respondents.
146. In this context we feel it appropriate to refer to
paragraph 56 and 97 from the judgment namely 1995 Cri.L.J.
1956 (In Re: Rajendran and others) which needs to be
stated, in as much as, we feel that the unfortunate incident that
occurred on 19.02.2009 and the gravity of which is such that this
Court has to necessarily take a firm view and pass appropriate
orders so that the message can be made loud and clear that no
such recurrence can ever be dreamt of in future by any one. The
said paragraphs read as under:
“56. Mrs.Prabha Sridevan, President, Women
140
Lawyers’
Association,
submitted
that
the
after-noon incident had a close connection
with the morning closure of gates Advocates
as well as policemen, were important limbs,
for the former were right protectors – while
the latter were law enforcers. The tension, if
any, between them must be comfortably
resolved.
Re-orientation programmes must
be organized.
*****
97. We are very clear and let us transmit a
certain message.
We are totally conscious,
that we have dealt with the contemners,
rather lightly, but that has been the outcome
after serious and thought provoking process
and the positive response of ours, to the
fervent, sincere and responsible plea, backed
up with purposeful panorama of a possible
good ear ahead, made by learned senior
counsel, learned Advocate General and the
Presidents
of
various
Associations
of
Advocates. Let not any one walk out of this
Court Hall with an impression, that whatever
be the gravity of the offence, one could
always escape lightly.
The instant untoward
incident, has been analysed by all concerned,
and the answer in unison was that let this
episode serve as a sure foundation or eye
opener for fostering of a better tomorrow,
141
with an assurance that recurrence, if any,
though chances may be bleak, will have to be
gravely
taken
note
of
and
appropriate
punishment meted out.”
147. Dr.Rajeev Dhavan, in his submissions contended that
the counsel representing the advocates made several prayers
such as suspension of police officers, production of various
circulars, initiation of disciplinary action against officers, safety of
advocates, investigation and prosecution by CBI, registration of
criminal complaint against police officials, compensation for
injured advocates, damages caused to men and material etc.,
and contended that many of those grievance including direction
for investigation and prosecution by CBI have been already
fulfilled. In so far as the suspension of the police officers and
initiation of disciplinary proceedings is concerned, the learned
senior counsel by making a reference to Articles 309 to 311 of
the Constitution of India contended that there are certain well
laid down principles contained in those constitutional provisions
and the same cannot be given a go bye and the Court should not
take upon the role of the State by ordering suspension or any
other action. By relying upon the decisions reported in (1968) 1
SCR 185 (Roshan Lal Tandon Vs. Union of India), (1997) 6
142
SCC
623
(Chairman,
C.R.Rangadhamaiah),
(1962)
Prasad
State
Sharma
Vs.
Railway
1
of
SCR
U.P.),
Board
151
1958
Vs.
(Jagannath
SCR
828
(Parshotam Lal Dhingra Vs. Union of India) and 1963 Supp
(1)
SCR
648
(State
of
Orissa
Vs.
Bidyabhushan
Mohapatra), the learned senior counsel contended that the
position of civil servant is one of status and is not like a contract
of service between master and servant and therefore it should be
left to the State to decide as to what course of action it should
take against any of its erring employees. As far as the prescribed
procedure contained in Articles 309 to 311 is concerned, the
same cannot be disputed. However, we are of the view that the
powers of this Court to give appropriate directions to the State to
take any action against the erring officers is not taken away. For
that proposition, we seek succor for that proposition in the
decisions relied upon by Ms.R.Vaigai reported in (1996) 4 SCC
742 (Punjab & Haryana High Court Bar Association Vs.
State of Punjab) at para 5, (2004) 5 SCC 26 (Daroga Singh
Vs. B.K.Pandey) at para 49 and (1991) 4 SCC 406 (Delhi
Judicial Service Assn. Vs. State of Gujarat) at para 54. It will
be sufficient if we make a reference to the observations of the
Hon'ble Supreme Court made at paragraph 54 in the decision
143
reported in (1991) 4 SCC 406 (Delhi Judicial Service Assn.
Vs. State of Gujarat) :
"54.We are constrained to observe that the
State Government did not
immediately take
effective steps against the erring officials.
In
spite of the direction issued by this Court the
erring police officers were neither arrested nor
placed under suspension.
It was only after this
Court took serious view of the matter and
directed the State Government to suspend the
erring police officers and arrest them, the State
Government moved in the matter. The apathy of
the State Government in taking effective action
against the erring police officers leads to an
impression that in the State of Gujarat, police
appears
to
administration
have
was
upper
hesitant
hand,
in
as
taking
the
action
against the erring police officers. If this practice
and tendency is allowed to grow it would result in
serious erosion of the Rule of Law in the State.
We hope and trust that the State Government will
take effective measures to avoid reoccurrence of
any such instance. The State Government should
further take immediate steps for the review and
revision of the Police Regulations in the light of
the findings recorded by the Commission."
144
148. With this when we deal with the submission as to the
judicial restraint to be adopted, the various decisions relied upon
were all cases where the Hon’ble Supreme Court was considering
the final order of punishment and with reference to which the
scope of interference has been set out. We are at a stage where
the consideration is as to in what manner such of those police
officers who have been held to have acted highly detrimental to
the interest of the institution and such detrimental action has
caused a permanent black mark on the institution which cannot
be lightly ignored or condoned. In such a situation while on the
one hand the various associations of lawyers and other respective
counsel
would
commend
this
Court
to
direct
the
State
Government to place the concerned officers under suspension
and take appropriate disciplinary action against them, the learned
senior counsel appearing for the respondent police officers would
canvass for the matter to be left to the discretion of the State.
149. In fact in the order dated 18.03.2009, the Full Bench
after the submission of the report by the Commissioner of Police
of the same date thought it fit to
place the Additional
Commissioner of Police and the jurisdictional Joint Commissioner
of Police under suspension. The Full Bench has given its reasons
145
in paragraph 8, which reads as under:
“8. As we find that a prima facie case made
out to initiate disciplinary proceeding against
the concerned officers, to ensure the State
Government to pass appropriate orders, we
are of the view that (i) Mr.A.K.Viswanathan,
IPS, Addl. Commissioner of Police (Law &
Order) and (ii) Mr.M.Ramasubramani, IPS,
formerly Joint Commissioner of Police (North)
(Jurisdiction JCP), should be placed under
suspension, as they were the persons who
were in the helm of the affairs and under
whose direct supervision the operation was
carried on.”
150. Since the Hon’ble Supreme Court held that the said
direction came to be issued without hearing the Additional
Commissioner of Police and the jurisdictional Joint Commissioner
of Police, this Court was directed to give an opportunity to them
before passing any further orders.
151. Be that as it may, the learned Advocate General in his
own inimitable style made a very fair statement to the Court that
the State neither supports nor oppose the action of the police and
instead it wanted to identify the concerned officers who are
146
responsible for the ghastly incident against whom it is always
prepared to take appropriate action.
In his submission the
learned Advocate General stated that for that purpose the State
Government has appointed Dr.N.Sundaradevan, I.A.S., as One
Man Committee and that unfortunately in the enquiry held by
him, none of the advocates participated. He would therefore
contend that in the event of the Court finding any officer
responsible, the State would carryout the directions of this Court
scrupulously. In the light of the above stand of the learned
Advocate General, we are of the considered opinion that in the
extraordinary facts placed before us, we are convinced that the
four police officers whom we have held responsible for the whole
ghastly incident that took place on 19.02.2009, inside the High
Court campus in which severe damage was caused to men and
materials by their imprudent act which has created an indelible
stigma on the prime institution, it would be in order for the State
to take necessary disciplinary action against them and in order to
proceed with such action without any interference, it would be in
order for the State Government even to place them under
suspension pending disciplinary action.
Having regard to the
solemn undertaking placed before us through the learned
Advocate General, we are convinced that it would be suffice for
147
the State to take note of our above observation in the proper
perspective and leave no stone unturned to fulfill the objective in
the interest of justice. We answer Question No.(iv) as above.
QUESTION No.(vi)
152. As far as the power of this Court to initiate any
contempt action is concerned, the High Court being a Court of
Record it has got every power to punish any one for contempt of
itself. It is the constitutional mandate as stated under Article 215
of the Constitution of India.
153. As far as the contempt is concerned the various
submissions of learned counsel who appeared for the advocates
is considered, Mr.R.C.Paul Kanakaraj, in his submissions pointed
out that after the incident that took place in the High Court on
19.02.2009, the Court could not
function on 20.02.2009,
23.02.2009 and 24.02.2009. As far as the City Civil Court and
Court of Small Causes and other judicial forums located inside
the campus was concerned, the same were able to function only
from 02.03.2009.
In fact these days were undeclared holidays
for all the above institutions.
148
154. As stated by us earlier in the annals of the set up of
the High Court for more than a century and half, this was the first
time that Courts were immobilized due to the incident that
happened inside the High Court campus.
According to the
learned counsel the said situation would fall within the definition
of criminal contempt as defined under Section 2(c) of the Act.
The learned counsel also submitted that after 11.30 am the
retention of the armed forces inside the High Court campus
without any permission and without any justifiable cause calls for
severe action.
The indiscriminate beating of the lawyers and
others in which, many sustained head injuries. One of the P.As
to the Hon’ble Judge was severely beaten. Above all a sitting
Judge of this Court also sustained a lathi blow. Ms.R.Vaigai in
her submissions stated that neither the State nor the police have
realized the enormity of what happened on 19.02.2009 and
therefore to uphold the majesty of the institution namely the
judiciary, the Court alone should come for the rescue. According
to her the CD produced by the police is an edited version in as
much as the time recorded therein jumps intermittently. The
statement of the Commissioner of Police about his entry into the
High Court premises itself is incorrect in as much as one of the
photographs discloses that while he was very much present
149
inside the High Court premises and was in the midst of police
personnel the time in the watch worn by him itself display 4.45
pm, whereas he would repeatedly contend that he entered the
High Court premises only at 5.00 pm. She also contended that
the beating of Hon’ble Mr.Justice A.C.Arumugaperumal Adityan
was clearly visible in the CD produced at her instance at which
point of time also the Commissioner of Police was very much
present inside the High Court campus which was around 4.15
pm.
The
learned
counsel
therefore
contended
that
the
Commissioner of Police was attempting to mislead this Court by
not disclosing the correct facts relating to the incident.
155. The learned counsel contended that the incident as
well as its aftermath has caused grave prejudice to the institution
and that it was a loss of dignity and grace of the institution. She
further contended that it was not as if the police officers could
not have assessed the magnitude of the issue before even
venturing to entertain the plea of surrender by the accused
advocates, and therefore their failure to seek the permission of
the Court to entertain the plea of such accused advocates cannot
be pardoned. The enormity of the situation was such that it was
so extraordinary the police officers should have applied great
150
caution before entering upon it. Therefore according to her their
failure to obtain prior permission of the Court to carry out the
exercise on that day or at least inform the Registry before doing
that was a serious conduct, which calls for serious action. The
learned counsel further contended that when the Commissioner
of Police himself admitted that he anticipated huge trouble, it was
constitutionally mandated upon him to have taken the necessary
precaution to seek the permission of the Hon’ble Acting Chief
Justice especially when he wanted deployment of large number of
armed forces to carry out that mission.
The learned counsel
therefore contended that it calls for serious contempt action
against the police officers.
156. Mr.N.G.R.Prasad, learned counsel representing the
lawyers in his submissions pointed out that it was not a mere
police excess but it is a state excess and that the attack was not
only against the lawyers but against the whole institution which
was not innocent. The learned counsels therefore contend that it
calls for serious action by way of initiation of contempt.
157. As against the above submissions on contempt,
Dr.Rajeev Dhavan in his submissions contended that in the first
151
place the submission of the learned counsel for the advocates
drawing an analogy of the judiciary on par with the parliament
was somewhat overbroad argument. According to the learned
counsel even while acknowledging the status of judiciary in
particular its independence to be safeguarded by virtue of articles
50 and 121 of the Constitution, yet it would be too wide a
proposition to be equated with parliamentary privileges to be
extended to judicial institution. According to the learned senior
counsel having regard to the very many constitutional provisions
under Articles 105, 194 and specific regulatory provisions
providing for autonomous control for the Parliament over its
precincts especially in the matter of arrest in the House, the
enclosed vicinity and of its members, such an extraordinary
privilege has not been provided for any other institutions
including judiciary except what has been provided under Articles
121, 211 and 124(4) of the Constitution as well as Section 77 of
the Indian Penal Code.
158. The learned senior counsel even while making a
reference to Articles 129 and 215 of the Constitution which has
provided special powers of contempt for the Supreme Court and
the High Court, would contend that in exercise of such power
utmost restraint need to be applied. According to the learned
152
senior counsel the contention of the learned counsel representing
the lawyers allege both civil as well as criminal contempt as can
be stated as under:
(a) When the civil contempt alleged
relating to the order dated 19.02.2009, in
W.P.Nos.181 to 183 of 2009 which directed
the appellant to file report on the events of
17.02.2009.
(b) Order dated 19.02.2009 in Suo
Motu
W.P.No.3335
of
2009
directed
release of advocates and no further arrest
to be made.
(c) Order dated 18.03.2009 in Suo
Motu
W.P.No.3335
disciplinary
of
action
2009
directing
against
Messers
A.K.Viswanathan and M.Ramasubramani,
and
(d)
Order
W.P.Nos.3703
M.P.Nos.1
to
dated
to
13.03.2009,
3705
8
of
of
2009
2009
in
and
and
Crl.O.P.No.4085 of 2009, directing the
police
to
produce
the
log
book
and
telephone records of all senior officers
As far as the criminal contempt is concerned, the learned counsel
153
would contend that behaviour of the advocates inside the Court
Hall on 17.02.2009, throwing eggs on Dr.Subramaniam Swamy,
throwing of stones by lawyers and indulging in violence on
19.02.2009, burning of the police station inside the High Court
campus, contradictory affidavits of lawyers in these proceedings
and the articulation of slogans against judges on 19.02.2009
needs to be examined. He also referred to the allegation of the
petitioners as regards the criminal contempt alleged against the
respondent police officers, viz., bringing in reinforcement without
the consent of the Chief Justice; a pre-planed attack on the High
Court and its personnel; attack on the lawyers, judges and staff;
filing wrong or misleading affidavits and information; and having
damaged lawyers’ property and High Court building and property.
159. The learned senior counsel submitted
that the
procedure to be followed is generally as per the rules of the
Madras High Court dated 07.08.1975. As a matter of practice,
the advice of the learned Advocate General is sought which is
entitled to the highest consideration and in any case it cannot be
disputed that obstruction of the course of justice would enable
this Court to initiate contempt of itself suo motu.
154
160. When we consider the above submissions of the
respective counsel at the outset we wish to state that the incident
that took place on 17.02.2009, is being dealt with by a Full Bench
and therefore we refrain ourselves from dealing with the said
issue in this order. On contempt action, we wish to be guided by
the various decisions on this aspect. In the decision reported in
(2004) 5 SCC 26 (Daroga Singh Vs. B.K.Pandey) the Hon’ble
Supreme Court dealt with a case where the conduct of the
policemen who was also an Office Bearer of the association of
policemen at district level and who along with his supporters
entered the chambers of First Additional District and Sessions
Judge, Bhagalpur in Bihar after assaulting the Court peon, further
assaulted the Sessions Judge himself. Due to the manhandling,
the Sessions Judge felt dizziness and became unconscious. It
was due to the timely arrival of a team of Doctors his life was
saved. After assaulting the Sessions Judge and its Court Staff
the police personnel took away certain records and damaged the
doors and grills of the gate. They also assaulted some of the
lawyers and damaged their furniture and the motor vehicle
parked inside the Court compound. There was a report referring
the names of the police officials who were identified by the Court
staff as well as the Additional District Judge as well as the
155
lawyers who were assaulted. Based on the report of the District
Judge, the Division Bench of the High Court entertained a writ
petition and after hearing the President of the High Court
Advocates Association as well as the learned Advocate General,
the Division Bench came to the conclusion that prima facie case
of
criminal
contemnors.
contempt
has
been
made
out
against
the
Thereafter proceedings under the Contempt of
Courts Act were initiated and contempt notice were issued by the
Registry to the contemnors calling upon them to show cause why
suitable action should not be taken against them for the alleged
misconduct.
The State Government was also asked to report
about the steps taken relating to the incident.
The Director
General of Police found the officers guilty of the alleged incident
and condemned the police officials for their act.
The State
Government acting on the basis of the report of the Director
General of Police issued orders suspending all such officials from
service. A Commission of Enquiry was also set up under the
provisions of the Commissions of Enquiry Act, 1952. Apart from
the departmental proceedings, Criminal cases were also lodged
against them. When a request was made by the contemnors to
keep the
contempt
proceedings
in abeyance
awaiting the
outcome of the criminal prosecution as well as departmental
156
proceedings, the High Court declined the said prayer.
In
response to the show cause notice, the contemnors condemned
the incident of assault on the Additional District Judge. Some of
the contemnors tried to justify the act by stating that there was
resentment amongst police personal for the arrest of one of their
colleagues and removal of stars from his uniform in the Court.
Some of them pleaded alibi. The High Court after taking due care
and caution dropped the proceedings against those who were not
really involved in the incident but found at least 10 of them guilty
and imposed punishment of simple imprisonment for a period of
three months and for another 8 contemnors to undergo simple
imprisonment for a period of two months. It was also made clear
that the discharge of rule of contempt notice of the proceedings
against the other 17 would not absolve them of their misconduct
and guilt for their respective offences, if any. The said order of
the High Court was the subject matter of challenge before the
Hon’ble Supreme Court.
Several contentions were raised and
dealing with such contentions, ultimate conclusion of the Hon’ble
Supreme Court are stated as under in paragraphs 26, 29, 31, 32,
33, 35, 41 and 44:
“26.
What
Section
is
228
made
IPC
is
punishable
the
under
offence
of
157
intentional insult to a judge or interruption
of court proceedings but not as a contempt
of
court.
The definition
of criminal
contempt is wide enough to include
any act by a person which would
either scandalise the court or which
would
tend
to
interfere
with
the
administration of justice. It would also
include
any
act
which
lowers
the
authority of the court or prejudices or
interferes with the due course of any
judicial proceedings. It is not limited to
the offering of intentional insult to the
judge
or
interruption
of
the
judicial
proceedings. This Court observed in Delhi
Judicial Service Assn. v. State of Gujarat:
(SCC pp.457-58, paras 42 & 43)
The public have a vital stake in effective
and orderly administration of justice. The
Court has the duty of protecting the
interest of the community in the due
administration of justice and, so, it is
entrusted with the power to commit
for contempt of court, not to protect
the dignity of the Court against insult
or injury, but, to protect and vindicate
the right of the public so that the
administration
of
justice
is
not
158
perverted, prejudiced, obstructed or
interfered with. The power to punish
for contempt is thus for the protection
of public justice, whose interest requires
that decency and decorum is preserved in
courts of justice. Those who have to
discharge duty in a court of justice are
protected by the law, and shielded in the
discharge of their duties. Any deliberate
interference
with
the
discharge
of
such duties either in court or outside
the court by attacking the presiding
officers of the court, would amount to
criminal contempt and the courts must
take
serious
cognisance
of
such
conduct.
*****
29. We respectfully agree with the view
taken in this judgment and hold that the
High Court could initiate proceedings on its
own motion under the Contempt of Courts
Act against the appellants. On the facts of
this case apart from the report sent by the
Vth Additional District and Sessions Judge
of the incident, Young Lawyers’ Association
had
also
filed
a
writ
petition.
The
Presidents of the three Bar Associations
and the Advocate General were present
and heard before initiating the proceedings
159
for criminal contempt. It has been noted by
the
High
Court
that
“all
the
three
Presidents of the High Court Associations
and the Advocate General arrived at the
conclusion that a prima facie case of
criminal contempt was made out against
the contemners”. This shows that the
Advocate General of the State was also of
the opinion that prima facie a case for
initiation
of
proceedings
for
criminal
contempt was made out and he was a
consenting party to the initiation of the
proceedings.
*****
31. It has repeatedly been held by this
Court [Vinay Chandra Mishra, In re]
that the procedure prescribed either
under the Code of Criminal Procedure
or under
the Evidence
Act is
not
attracted to the proceedings initiated
under Section 15 of the Contempt of
Courts Act. The High Court can deal
with
such
matters
summarily
adopt its own procedure.
and
The only
caution that has to be observed by the
Court in exercising this inherent power of
summary procedure is that the procedure
followed
must
be
fair
and
the
contemners are made aware of the
160
charges
given
levelled
a
against
fair
them
and
and
reasonable
opportunity. Having regard to the fact
that
contempt
proceedings
decided
expeditiously
manner
the
in
are
a
convictions
to
be
summary
have
been
recorded without extending the opportunity
to the contemners to cross-examine those
who
had
deposed
against
them
on
affidavits. Though the procedure adopted
in this case was summary but adequate
safeguards
were
taken
to
protect
the
contemners’ interest. The contemners were
issued
notices
apprising
them
of
the
specific allegations made against them.
They
were
counter
their
given
the
an
opportunity
allegations
counter-affidavits
and
by
to
filing
additional
counter/supplementary affidavits as per
their
request.
They
were
also
given
opportunity to file affidavits of any other
persons which they did. They were given
opportunities
to
produce
any
other
material in their defence which they did not
do. Most of the contemners had taken the
plea that at the relevant time they were on
duty in their respective police stations
though in
the same town. They also
attached copies of station diaries and duty
161
chart in support of their alibi. The High
Court did not accept the plea of alibi as all
these papers had been prepared by the
contemners themselves and none of the
superior officers had supported such a
plea.
The
evidence
produced
by
the
respondents was rejected in the face of the
reports made by the Additional District and
Sessions Judge, Director General of Police
coupled with affidavits of Mr Barai, the
Additional District and Sessions Judge, two
court officials and affidavits of some of the
lawyers who had witnessed the occurrence.
32. The contempt proceedings have to be
decided in a summary manner. The judge
has to remain in full control of the hearing
of
the
case
and
immediate
action
is
required to be taken to make it effective
and
deterrent.
Immediate
steps
are
required to be taken to restore order as
early and quickly as possible. Dragging the
proceedings unnecessarily would impede
the speed and efficiency with which justice
has to be administered. This Court while
considering all these aspects held in
Vinay
Chandra
Mishra,
In
re
(the
alleged contemner) that the criminal
contempt no doubt amounts to an
162
offence but it is an offence sui generis
and
hence
procedure
for
such
adopted
offence,
the
both under the
common law and the statute law in the
country has always been summary. It
was observed that the need was for taking
speedy action and to put the judge in full
control of the hearing. It was emphasised
that immediate steps were required to be
taken
to
restore
order
in
the
court
proceedings as quickly as possible. To
quote from the above-referred-to case:
(SCC pp. 609-10, para 26)
“However, the fact that the process is
summary
does
not
mean
viz.
that
that
the
procedural
requirement
an
opportunity
of meeting the charge, is
denied to the contemner. The degree of
precision with which the charge may be
stated depends upon the circumstances. So
long as the gist of the specific allegations is
made clear or otherwise the contemner is
aware of the specific allegation, it is not
always necessary to formulate the charge
in a specific allegation. The consensus of
opinion among the judiciary and the
jurists
alike
is
that
despite
the
objection that the judge deals with the
163
contempt himself and the contemner
has
little
opportunity
to
defend
himself, there is a residue of cases
where not only it is justifiable to
punish on the spot but it is the only
realistic way of dealing with certain
offenders. This procedure does not
offend against the principle of natural
justice viz. nemo judex in sua causa
since the prosecution is not aimed at
protecting the judge personally but
protecting
justice.
the
The
administration
threat
of
of
immediate
punishment is the most effective deterrent
against misconduct. The judge has to
remain in full control of the hearing of the
case and he must be able to take steps to
restore order as early and quickly as
possible.
The
time
factor
is
crucial.
Dragging out the contempt proceedings
means a lengthy interruption to the main
proceedings which paralyses the court for a
time and indirectly impedes the speed and
efficiency
with
which
justice
is
administered. Instant justice can never be
completely satisfactory yet it does provide
the simplest, most effective and least
unsatisfactory
method
of
dealing
with
disruptive conduct in court. So long as
164
the
contemner’s
interests
are
adequately safeguarded by giving him
an opportunity of being heard in his
defence, even summary procedure in
the case of contempt in the face of the
court is commended and not faulted.”
33. In the present case the High Court had
decided to proceed with the contempt
proceedings in a summary manner. Due
opportunity
was
afforded
to
all
the
contemners and after verifying and crosschecking the material available before it,
coming from different reliable sources the
High Court convicted only nine persons out
of
twenty-six
persons
arrayed
as
contemners before it. The High Court
took due care to ascertain the identity
of the contemners by cross-checking
with
the
affidavits
filed
by
the
different persons. It is also based on the
independent
Director
reports
General
submitted
of
Police
by
the
and
Superintendent of Police. We do not find
any fault in the procedure adopted by the
High Court in conducting the proceedings
in the present case. For the survival of the
rule of law the orders of the courts have to
be obeyed and continue to be obeyed
165
unless overturned, modified or stayed by
the appellate or revisional courts. The
court does not have any agency of its own
to
enforce
its
orders.
The
executive
authority of the State has to come to the
aid of the party seeking implementation of
the court orders. The might of the State
must stand behind the court orders for
the survival of the rule of the court in
the
country.
Incidents
which
undermine the dignity of the courts
should be condemned and dealt with
swiftly. When a judge is attacked and
assaulted in his courtroom and chambers
by persons on whose shoulders lay the
obligation of maintaining law and order and
protecting the citizen against any unlawful
act, it needs to be condemned in the
severest of terms. If the judiciary has to
perform its duties and functions in a fair
and free manner, the dignity and the
authority of the courts has to be respected
and maintained at all stages and by all
concerned
failing
which
the
very
constitutional scheme and public faith in
the judiciary runs the risk of being lost.
*****
35. Plea that reasonable and adequate
opportunity
was
not
afforded
to
the
166
appellants is equally untenable. We find
from the record that all the materials
(affidavits, show-cause notice, etc.) which
were brought on record were properly
served on the learned advocates appearing
for the contemners. The reports submitted
by the Vth Additional Sessions Judge,
District Judge, affidavit of Shri Barai and
his staff, namely, R. Das and B. Sharma
and the other affidavits of the advocates
who had seen the occurrence and the
reports submitted by the Director General
of Police and the Superintendent of Police
were given to the learned advocates who
were appearing for the contemners in the
High Court. Statements of A. Natarajan,
the then SP, Harihar Choudhary, the then
Deputy Superintendent of Police, Ranjit
Pandey, the then Sergeant Major and
Shashi Lata Singh, the then SI were
recorded by the High Court in the presence
of all the lawyers. The Registry of the High
Court
was
statements
contemners
directed
in
a
were
to
sealed
keep
their
cover.
The
permitted
to
file
affidavits and produce any other material
in support of the same. They were also
permitted to file affidavits of any other
person
supporting
their
version.
They
167
were
all
taken
on
record.
After
affording due opportunity of hearing
to
the
counsel
appearing
for
the
contemners, the High Court recorded
the
order
of
conviction.
Thus
the
appellants were given the evidence which
had come on the record. They were given
an
opportunity
allegations
to
made
against
produce
evidence
in
Counsel
appearing
for
were
satisfied
controvert
with
them
support
the
the
and
thereof.
contemners
the
opportunity
provided to them by the High Court. Plea
that
reasonable
opportunity
was
not
afforded to the contemners was not raised
before the High Court. We are of the
opinion that due reasonable and adequate
opportunity was afforded to the appellants
to defend themselves and put forth their
point of view.
*****
41.
In
the
constitutional
scheme
the
judiciary is entrusted with the task of
upholding the Constitution and the laws.
Apart from interpreting the Constitution
and the laws, the judiciary discharges the
function of securing maintenance of law
and order by deciding the disputes in a
manner acceptable to civilised and peace-
168
loving society. In order to maintain the
faith of the society in the rule of law
the role of the judiciary cannot be
undermined. In a number of cases this
Court has observed that foundation of
the
judiciary
is
the
trust
and
confidence of the people of the nation
and when such foundation or trust is
rudely
shaken
by
means
of
any
disrespect by the very persons who
are required to enforce the orders of
the court and maintain law and order
the people’s perception of efficacy of
the systems gets eroded.
42. The judges are — as a jurist calls them
— “paper tigers”. They do not have any
machinery of their own for implementing
their orders. People, while approaching
the court of law which they regard as
the temple of justice, feel safe and
secure whilst they are in the court.
Police personnel are deployed in the court
campus for the purpose of maintaining
order and to see that not only the judges
can work fearlessly in a calm, cool and
serene atmosphere but also to see that
anyone coming to the court too feels safe
and secure thereat. Every participant in
169
court proceedings is either a seeker of
justice or one who comes to assist in
administration
of
justice.
So
is
the
expectation of the members of the Bar who
are treated as officers of the court. We
shudder to feel what would happen if
the police personnel themselves, and
that too in an organised manner, are
found to be responsible for disturbing
the peace and order in the court
campus, for causing assault on the
judges and thus sullying the temple of
justice
apart
from
bringing
a
bad
name to an indispensable organ of the
executive wing of the State.
*****
44. We have not been able to forget the
policing role of the police of the British Raj
wherein an attitude of hostility between
the police
and the policed under the
colonial rule was understandable. It is
unfortunate that in one of the largest
constitutional democracies of the world the
police has not been able to change its that
trait of hostility.” (Emphasis added)
161. In the decision of the Hon’ble Supreme Court reported
in (1995) 3 SCC 767 (Dhananjay Sharma Vs. State of
170
Haryana and Others) while dealing with a false plea made
before the High Court in a Habeas Corpus petition, the Hon’ble
Supreme Court held as under in paragraph 38 :
“38. Section 2(c) of the Contempt of
Courts Act, 1971 (for short the Act) defines
criminal
contempt
as
“the
publication
(whether by words, spoken or written or by
signs
or
visible
representation
or
otherwise) of any matter or the doing of
any other act whatsoever to (1) scandalise
or tend to scandalise or lower or tend to
lower the authority of any court; (2)
prejudice or interfere or tend to interfere
with the due course of judicial proceedings
or (3) interfere or tend to interfere with, or
obstruct
or
tend
administration
of
to
justice
obstruct
in
any
the
other
manner. Thus, any conduct which has the
tendency
to
interfere
with
the
administration of justice or the due course
of judicial proceedings amounts to the
commission of criminal contempt. The
swearing of false affidavits in judicial
proceedings not only has the tendency
of
causing
obstruction
in
the
due
course of judicial proceedings but has
also the tendency to impede, obstruct
and interfere with the administration
171
of justice. The filing of false affidavits
in judicial proceedings in any court of
law exposes the intention of the party
concerned in perverting the course of
justice. The due process of law cannot be
permitted to be slighted nor the majesty of
law be made a mockery of by such acts or
conduct on the part of the parties to the
litigation
or
even
while
appearing
as
witnesses. Anyone who makes an attempt
to impede or undermine or obstruct the
free flow of the unsoiled stream of justice
by resorting to the filing of false evidence,
commits criminal contempt of the court
and renders himself liable to be dealt with
in accordance with the Act. Filing of false
affidavits or making false statement
on oath in courts aims at striking a
blow at the rule of law and no court
can ignore such conduct which has the
tendency to shake public confidence in
the judicial institutions because the
very structure of an ordered life is put
at stake. It would be a great public
disaster if the fountain of justice is allowed
to be poisoned by anyone resorting to filing
of
false
affidavits
or
giving
of
false
statements and fabricating false evidence
in a court of law. The stream of justice has
172
to be kept clear and pure and anyone
soiling its purity must be dealt with sternly
so that the message percolates loud and
clear that no one can be permitted to
undermine the dignity of the court and
interfere with the due course of judicial
proceedings
or
the
administration
of
justice. In Chandra Shashi v. Anil Kumar
Verma the respondents produced a false
and fabricated certificate to defeat the
claim of the respondent for transfer of a
case. This action was found to be an act
amounting
to
interference
with
the
administration of justice. Brother Hansaria,
J. speaking for the Bench observed: (SCC
pp.423-24, paras 1 and 2)
“The stream of administration of
justice has to remain unpolluted
so
that
purity
of
court’s
atmosphere may give vitality to
all the organs of the State.
Polluters of judicial firmament
are, therefore, required to be
well taken care of to maintain
the
sublimity
of
court’s
environment; so also to enable
it to administer justice fairly and
to
the
concerned.
satisfaction
of
all
173
Anyone
who
takes
recourse to fraud deflects the
course of judicial proceedings;
or if anything is done with
oblique
motive,
interferes
the
same
with
the
administration of justice. Such
persons
are
required
to
be
properly dealt with, not only to
punish
them
for
the
wrong
done, but also to deter others
from indulging in similar acts
which shake the faith of people
in the system of administration
of justice.” (Emphasis added)
162. In the decision reported in (1996) 6 SCC 323
(Commissioner of Police, Delhi and another Vs. Registrar,
Delhi High Court, New Delhi), the Hon’ble Supreme Court
dealt with a case where the former Prime Minister P.V.Narasimha
Rao
was
summoned
by
the
Chief
Metropolitan
Magistrate/Additional Sessions Judge, Tis Hazari Court.
As
Mr.P.V.Narasimha Rao as former Prime Minister was to be
provided with necessary security of highest degree, the Court
was approached to permit the authorities to make the entire
174
Court campus a sterilized zone. When the parties approached the
Delhi High Court, seeking for change of venue and the place of
trial, the High Court declined their request on the administrative
side. The matter went before the Hon’ble Supreme Court. The
Hon’ble Supreme Court while considering the rejection order of
the Administrative Committee of the High Court took note of the
detailed minutes which disclosed that the paramount interest of
the Court is the normal functioning of the regular Courts even
while noting that the security personnel even while providing
security cover of special protection to the former Prime Minister
cannot cause any inconvenience to the functioning of the Courts.
That decisions also makes it clear that even under extraordinary
circumstance such as affording of special protection cover to a
former Prime Minister as a statutory obligation, the concerned
authorities felt the need to approach the Court for prior
permission and not take an unilateral decision.
163. In the Division Bench decision of the Allahabad High
Court reported in 1983 Cri.L.J. 866 (State of U.P. Vs. Deg Raj
Singh), the Division Bench held as under in paragraphs 34 and
36:
“34. In the instant case both the accused
175
viz. Surendra Singh and Ramesh Singh
approached the Court of the learned Chief
Judicial Magistrate in connection with their
surrender application.
The contemners in
a high handed manner deprived the court
to dispose of their surrender application
and thus denied the Court the power to
administer justice duly and impartially and
it clearly amounted to a gross contempt of
Court.
Such act
contemners
and
conduct
clearly
of
amounted
interference with the administration
the
to
of
justice in this case. The contemners never
informed the Court about any warrant, etc.
in
their
possession
nor
sought
his
permission before apprehension of Ramesh
Singh and Surendra Singh and are not
entitled to any protection by alleging that
the aforesaid accused were local terrors
and absconders and they were duty bound
to arrest them despite the commission of
contempt of Court. So they are held guilty
of Section 2(c) of the Contempt of Courts
Act, 1971.
*****
36. If apology is to dilute the gravity of
the
offence
it
should
be
voluntary,
unconditional and indicative of remorse
and contrition tendered at the earliest
176
opportunity. In the instant case it has been
found that the apology was offered by both
the contemners while denying the act of
contempt and was not sincere and so it was
simply an empty formality.
which
is
devoid
of
Such apology
remorse
could
not
counteract or palliate the mischief that had
already been done.” (Emphasis added)
164. In the decision reported in 2007 (4) CHN 842
(Association for Protection of Democratic Rights Vs. State
of West Bengal and Ors.) a Division Bench of the Calcutta High
Court in a suo motu writ petition relating to the incident that took
place at Nandhigram were the West Bengal police stated to have
taken some action against the agitating farmers and other
villagers, the Division Bench held that prima facie in a wholly
indefensible manner innocent people were shot down by none
other than the uniformed police officers. Dealing with the said
situation in the suo motu writ petition, the Court formulated the
following questions in paragraph 76 and observed as under in
paragraph 77 and 78:
“76. The action of the police would,
therefore,
raise
questions, viz.:
some
very
serious
177
(a) Was it necessary to surround the area
by three thousand strong police force ?
(b) Was the police action justified in
virtually invading the villages ?
(c) Did the officers concerned have any
jurisdiction to order the police to open fire
indiscriminately
without
identifying
the
targets or the ring leaders in the huge
crowd?
(d) The crowd was no large by its very
nature only individuals at the front would
have been the target of the bullets?
77.
The
fact
situation
has
been
depicted by the team of Advocates in their
report.
Mr.Mukherjee
has
made
a
reference to a diagram in the area where
the police
firing took
place.
He had
reiterated time and again the pleadings in
which it is categorically stated that the
police firing that erupted on 14th of March,
2007 was in the nature of State sponsored
terrorism.
Furthermore,
the
report
submitted by the doctors who visited the
locality have actually shown the individuals
who are responsible for rape, arson etc. In
such circumstances, we are of the opinion
that
the
learned
Senior
Counsel,
Mr.Mukherjee, is justified in his submission
178
that the High Court ought to exercise its
power
under
Article
226/227
of
the
Constitution of India and issue necessary
orders and directions to unearth the truth.
78. We are unable to accept the
submission
of
the
learned
Advocate
General that mere gathering of very large
group of villagers would be so intimidating
or awesome as to overawe the State or its
authorities as required under Section 129
of the Cr.P.C. The very wide definition of
‘force’
given
in
Section
349
of
IPC,
therefore, cannot be a justification for
discriminate gun firing indulged in by the
police, ostensibly disperse or control the
crowd.”
The Division Bench went on to hold as under in paragraph 106,
where the Division Bench referred to certain principles laid down
by the Hon’ble Supreme Court in LLP.State Road Transport
Case:
“106…..There is thus no doubt that the
High Courts in India exercising their
jurisdiction under Article 226 have the
power to issue a writ of mandamus or
a writ in the nature of mandamus or to
pass
orders
and
give
necessary
179
directions where the Government or a
public authority has failed to exercise
or
has
discretion
wrongly
exercised
conferred
upon
the
it
by
a
statute or a rule or a policy decision of
the Government or has exercised such
discretion mala fide or on irrelevant
considerations
or
by
ignoring
the
relevant considerations and materials
or in such a manner as to frustrate the
object of conferring such discretion or
the
policy
for
implementing
which
such discretion has been conferred. In
all such cases and in any other fit and
proper case a High Court can, in the
exercise of its jurisdiction under Article
226, issue a writ of mandamus or a writ in
the nature of mandamus or pass orders
and
give
directions
to
compel
the
performance in a proper and lawful manner
of
the
discretion
conferred
upon
the
Government or a public authority, and in a
proper case, in order to prevent injustice
resulting to the concerned parties, the
Court may itself pass an order or give
directions which the Government or the
public authority should have passed or
given had it properly and lawfully exercised
its discretion………” (Emphasis added)
180
165. We also bestow our due consideration to the decisions
placed before us by Dr.Rajeev Dhavan on the issue of contempt
jurisdiction.
In the decision reported in (1972) 1 SCC 651
(R.L.Kapur Vs. State of Madras) it has been held as under in
paragraph 5:
“5. Article 215 declares that every High
Court shall be a Court of record and shall
have all powers of such a Court including
the power to punish for contempt of itself.
Whether Article 215 declares the power of
the High Court already existing in it by
reason of its being a Court of record, or
whether the article confers the power as
inherent
in
a
Court
of
record,
the
jurisdiction is a special one, not arising or
derived from the Contempt of Courts Act,
1952,
and
therefore,
not
within
the
purview of either the Penal Code or the
Code
of
Criminal
Procedure……..In
any
case, so far as contempt of the High Court
itself is concerned, as distinguished from
that of a Court subordinate to it, the
Constitution vests these rights in every
High Court, and so on Act of a Legislature
could
take
away
that
jurisdiction
and
confer it afresh by virtue of its own
authority.”
181
166. The learned senior counsel also referred to a decision
reported in (1995) 2 SCC 584 (Vinay Chandra Mishra, In re
v.) where in paragraph 45 the Hon’ble Supreme Court took the
following view:
“45…..That jurisdiction is independent of
the statutory law of contempt enacted by
Parliament under Entry 77 of List I of
Seventh Schedule of the Constitution. The
jurisdiction of this Court under Article 129
is sui generis.
The jurisdiction to take
cognizance of the contempt as well as to
award
punishment
for
it
being
constitutional, it cannot be controlled by
any statute.”
167. Dr.Rajeev Dhavan however made a fair statement that
though in the decision of the Hon’ble Supreme Court reported in
(1996) 11 SCC 93 (Executive Director, Tirumala Tirupathi
Devasthanam Vs. D.Nagulu Naidu) it was observed that the
Hon’ble Supreme Court or High Court does not have a carte
blanche power to exercise whatever power it thinks fit, in the
name of contempt of Court.
168. The learned senior counsel referred to an earlier
decision of the Hon’ble Supreme Court reported in (1991) 4 SCC
182
406
(Delhi
Judicial
Service
Association
Vs.
State
of
Gujarat), wherein, it has been stated that the Court of Justice
without power to vindicate its own dignity, to enforce obedience
to its mandates, to protect its officers, or to shield those who are
entrusted to its care, would be an anomaly which could not be
permitted to exist in any civilized community Society.
169. The learned senior counsel also contended that the
argument of the learned counsel for the petitioners that there is
rigid rule whereby the judiciary is insulated with an iron like
curtain, where it is wholly impermissible for the police to arrest
any criminal or even its presence is overbroad submission and
should not be accepted.
170. According to the learned senior counsel when based
on Government of India guidelines considering the threat
perception of the Supreme Court and the High Court in the
Country, specified security arrangements was directed to be
made and such security system was introduced to this Court on
and from 29.01.2009, the presence of the police cannot be
frowned upon and the action of the police in their genuine
attempt to control the law and order situation cannot be found
183
fault with. The learned senior counsel therefore contended that
the
police
officers
having
come
forward
to
express
their
unconditional apology for whatever happened on 19.02.2009 and
in respect of the Commissioner of Police whose career growth by
virtue
of
his
personal
excellence
administration,
initiation
of
either
in
the
field
disciplinary
of
police
or contempt
proceedings would seriously impinge upon/spoil his career and
therefore this Court should not countenance the claim of the
petitioners.
171. Having been fortunate enough to hear the enlightened
and dispassionate submissions of Dr.Rajeev Dhavan and the
anxious submissions made by Ms.R.Vaigai and other learned
counsel representing the lawyers, we proceed to consider this
question with utmost care and caution.
172. As rightly contended by Dr.Rajeev Dhavan, we do
agree that there cannot be total immunity, as has been claimed
on behalf of the petitioners from other wings of the State in
particular by the police. The non-availability of any statutory or
other regulations apart, we must state in the present day context
the judiciary plays a pivotal role in rendering its yeomen service
184
to the citizens of this country.
Time and again, it is being
repeatedly stated from every quarters that for every man’s
redressal the last resort is the judiciary. De hors and despite
several constraints and criticism, there can be no two opinion
that even today the judiciary is the institution which commends
high amount of reputation and respect from among the members
of the society and the right thinking persons. The institution,
which is rendering service to the common man, is looked upon by
every one with high amount of confidence and hope that pitted
against any onslaught or at extreme situation where one seeks
succor, this institution has not failed to come for one’s rescue and
take all endeavor to remedy the wrong or prevent an evil from
taking place or redress the grievance to the extent to which one
is entitled/possible and thus proved its existence all these years
and thereby keeping its mettle high in everyone’s esteem and
expectation.
173. If the scheme of the Constitutional provisions are
looked into, the institution of the Parliament and the Legislative
Assembly on the one hand and the other wing of the State
namely the Executive including the Police force and armed forces
are dealt with differently. Special privileges are accorded to the
185
institution of Parliament and the Legislative Assembly.
Under
Article 105 of the Constitution, such principles have been spelt
out in so far as the Houses of Parliament and all its members and
the Committees thereof.
Under Article 194 of the Constitution
such privileges have been extended to the State Legislature, its
members and Committees thereof. The services of those under
the State are concerned, the same is dealt with under Chapter IV
of Part XIV of the Constitution consisting of Articles 308 to 314.
174. As compared to such regulations contained in such
Chapter in so far as the the services of the Courts, we find that
under Chapter VI which contains Articles 233 to 237 of the
Constitution of India, the whole of the regulatory measures on
the subordinate courts are vested with the High Court apart from
the power of superintendence over all Courts subordinate to it by
the High Court under Article 227 of the Constitution. When we
make a glimpse of the provisions contained under Article 124
relating to the establishment and constitution of the Supreme
Court falling under Chapter IV and Articles 217 and 218 relating
to the appointment and condition of office of a Judge of a High
Court falling under Chapter V, the provisions have been couched
in such a manner that the framers of the Constitution bestowed
186
their utmost concern to ensure that the process of judicial
institution is kept aloof from the reach of any other wing of the
State and thereby ensure confidence in the minds of the common
man that though the expenditure of the judiciary is also met from
the State Exchequer but yet the wing of the judiciary would
encompass any situation and any person or body when it comes
to the question of rendering justice irrespective of caste, creed,
colour or status.
175. Keeping the above lofty ideas which weighed with the
constitutional framers, while providing a special status to the
judiciary in the hierarchy of public service, we are convinced that
any attempt from any quarters either deliberately or subvertly or
negligently or recklessly or in any other allied manner to cause a
dent to the institution should be seriously dealt with in order to
ensure that the greatness of the institution is not undermined by
any one to the detriment of the public at large.
To put it
differently, unless as pointed out by the Hon’ble Supreme Court
in the decision reported in (1991) 4 SCC 406 (Delhi Judicial
Service Association Vs. State of Gujarat), wherein, it has
been stated with authority and confidence that the Court of
Justice without power to vindicate its own dignity, to enforce
187
obedience to its mandates, to protect its officers, or to shield
those who are entrusted to its care, in our considered opinion
there would only be anarchy everywhere else in as much as it will
be the starting point for shaking the insurmountable pillar of the
institution providing scope for anybody else to attempt to play a
dirty game with the institution by designing their own form of evil
schemes.
176. Keeping the above perception in mind about the
status of the institution and its obligation to the society at large,
when we analyze the issue and questions posed before us, at the
very outset we are constrained to state that what happened on
19.02.2009, was an extreme and extraordinary situation which
calls for an extraordinary action. In fact that is the principle
stated by the Hon’ble Supreme Court in the decision reported in
(2003) 6 SCC 581 (T.K.Rangarajan Vs. Government of
Tamil Nadu).
177. The enormity and extraordinary nature of the situation
can be focused by listing out the following circumstances namely:
(i)
The
Head
of
the
Council
of
Ministers of the State namely the Hon’ble
188
the
Chief
Minister
in
his
spontaneous
response, forwarded a fax message to the
then
Hon’ble
Acting
Chief
Justice
on
19.02.2009, described the happening in
the High Court as:
“Unprecedented violence has
taken place…..”
He concluded the said fax message by
saying”
“…..I
am
valuable
expecting
suggestions
your
to
contain this violence and to
ensure justice is done and
peace is restored.
Though I
am in the hospital, if you wish
to see me, I will come and
meet
you
even
in
an
Ambulance.”
(ii) There was bloodshed inside the
campus to a very large extent which the
campus never ever witnessed from the
date of its inception.
(iii) Such bloodshed was of the
lawyers (mostly innocent), Staff members,
some of the policemen as well as litigant
public.
189
(iv) There were instances of lathi
charge by the policemen who indulged in
such lathi charge in an uncontrollable
manner and as could be seen from the CD,
such lathi charge was indiscriminate and
was not in consonance with the manner in
which it was set out in the Drill and
Training Manual.
(v) The officers concerned who were
responsible for ordering such lathi charge
had absolutely no control over their own
men.
(vi) In the process of such lathi
charge,
there
was
extensive
damage
caused to the vehicles numbering more
than 100 both four wheelers and two
wheelers as well as bicycles which was not
permissible in law.
(vii) Physical injury was caused to a
sitting Judge of this Court who attempted
to prevent such incidents from taking
place. The scene of attack of the learned
Judge
as
displayed
extremely pathetic.
in
the
CD
was
190
(viii) The policemen found in the
process of lathi charge were seen entering
into the buildings of the Court premises,
which
was
totally
unwarranted
and
impermissible.
(ix)
There
were
even
damages
caused to the furnitures inside the Court
Hall of the XII Judge, Court of Small
Causes.
(x) Extensive damages were caused
to the buildings of the City Civil Court,
Small Causes Court including the High
Court and to repair such damages, it
costed not less than Rs.7,00,000/- for the
Public Works Department.
(xi)
The
injuries
sustained
were
severe and some of the injured sustained
head injuries and the cost of treatment for
all those injured persons was in the order
of Rs.32,97,595/- and odd.
(xii) The charging policemen did not
spare even a van which was meant for
transporting the judicial officers, in spite of
the fact that there was a clear indication
on the side of the van where it was written
191
“ePjpj;Jiw (Judiciary)”.
(xiii) Apart from Hon’ble Mr.Justice
A.C.Arumugaperumal Adityan, though the
Hon’ble Acting Chief Justice himself along
with some of the Hon’ble Judges rushed to
the starting point of the lathi charge, they
were forced to withdraw since they were
cautioned that the mood of the policemen
was such that anything may happen even
to the Hon’ble Judges.
(xiv) Though the solitary victim was
Hon’ble
Mr.Justice
A.C.Arumugaperumal
Adityan, while the Hon’ble Acting Chief
Justice, Hon’ble Mr.Justice R.Sudhakar and
Hon’ble
Mr.Justice
R.Regupathi
had
a
narrow escape.
(xv) The charging policemen entered
into
the
library
section
of
the
Law
Association as well as Madras High Court
Advocates
Association
and
caused
extensive damages to the Bookshelves as
well as to the books kept therein.
(xvi) Some of the clippings disclose
that
even
advocates
while
to
the
taking
the
injured
ambulance
before
192
allowing them to enter into the ambulance
van, severe beating was meted out to such
injured advocates without any mercy.
(xvii) Though the severity of the
situation
indisputably
commenced
after
2.00 pm and ended by around 6.30 pm
none
of
namely
Additional
the
the
concerned
police
Commissioner
Commissioner
of
of
officers
Police,
Police,
jurisdictional Joint Commissioner of Police
and jurisdictional Deputy Commissioner of
Police either on their own or at the
instance of the Hon’ble Acting Chief Justice
were prepared to meet him and apprise
him of the seriousness of the situation.
(xviii) the order dated 19.02.2009,
passed by the Full Bench headed by the
Hon’ble
Acting
Chief
Justice
himself,
disclose that the High Court was totally
unaware of the game plan of the police
headed by the Commissioner of Police till a
report was filed by the Commissioner of
Police that too after repeated persistence
on 18.03.2009.
(xix) The situation which developed
after 12.00 noon was not a spontaneous
193
one posing a threat perception for the
police to act but was one which was
developed
and
fuelled
by
the
police
themselves which went out of control and
the consequence was a piquant situation in
which the police themselves were placed.
(xx) The beating of lawyers was not
restricted to the High Court campus alone,
it was carried beyond the campus and the
video clippings disclose that the policemen
were chasing the lawyers in some of the
streets
opposite
to
the
High
Court
premises on the northern side where many
of
the
lawyers
have
got
their
own
chambers.
(xxi) All the top officers namely the
Chief Secretary, Home Secretary, Director
General
of
Police,
Additional
Director
General of Police and the Commissioner of
Police assembled in the Acting Chief Justice
Chambers
where
a
Full
Bench
was
constituted on 19.02.2009 at around 6.40
pm, that is, after the extensive damage
was
done
to
the
personnel
premises of the High Court.
and
the
194
(xxii) realizing the enormity of the
situation, the team of top officials referred
to above who were given a personal
hearing by the Full Bench came forward to
straight away agree for an enquiry of the
whole incident by the CBI.
(xxiii) The injured advocates, staff
and others numbering more than 130 were
all given first aid in the Government
Hospital and were later admitted in private
hospitals for which the State had to shell
out a sum of Rs.32,97,595/-.
(xxiv) Similarly for the damaged
vehicles
compensation
to
the
tune
of
Rs.10,63,953/- has so far been disbursed
through the High Court from the funds
provided by the State Government.
(xxv) the aftermath of the incident
on 19.02.2009, was still worse, in as much
as, the High Court did not function on the
next day i.e. on 20.02.2009 which was a
Friday
and
also
on
23.02.2009
and
24.02.2009, i.e. the following Monday and
Tuesday.
195
(xxvi) Though the advocates who
were on boycott from 29.01.2009 for the
cause of Srilankan Tamils withdrew their
boycott and started attending Courts on
19.02.2009, in the light of the occurrence
on
19.02.2009,
they
continued
their
boycott subsequently also which could be
brought to an end only on and from
23.03.2009.
(xxvii) City Civil Court and the Court
of Small Causes as well as the subordinate
Courts also did not work from 20.02.2009
upto 27.02.2009.
Further the City Civil
Court and the Court of Small Causes could
resume their work only from 02.03.2009.
(xxviii)
Because
of
the
unprecedented occurrence on 19.02.2009,
the animosity between the police and the
advocates
also
got
aggravated
and
consequently the policemen were reluctant
to accompany the remand prisoners to the
Court
and
consequently
the
Judicial
Magistrate’s had to go to the concerned
Jail or sub-jail to pass orders of remand.
Such a situation was prevailing for more
than a month.
196
(xxix) in and around the High Court
campus since the lawyers were protesting
against the action of the police, the normal
traffic got disrupted on the NSC Bose Road
and
the
public
were
put
to
great
inconvenience.
(xxx) Such a situation also created
grave tension till the advocates resumed
their work on and from 23.03.2009.
(xxxi) on 19.02.2009, itself the B-4
Police Station located inside the High Court
campus was set on fire and extensive
damage was caused to its property.
(xxxii) on 20.02.2009, a vehicle
belonging to the fire service was set on fire
and the vehicle was completely burnt into
ashes.
178. A consideration of the prevalence of the above
circumstances cannot be treated in a light-hearted manner. In
other words, by virtue of the unprecedented unsavory incident
that occurred on 19.02.2009, the institution namely the Judiciary
in the State of Tamil Nadu from the top to bottom was totally
paralyzed for which whomsoever was responsible is bound to
197
answer and face the necessary consequences. As stated by us
earlier,
the
enormity
of
the
situation
was
something
extraordinary which cannot be dealt with lightly.
We say so
because the occurrence must be an eye opener for everyone both
the lawyers as well as the police in future and under no
circumstances, either this institution namely the Judiciary or any
other constitutional machinery or for that matter other limbs of
the State could afford to face such a situation by shifting the
responsibilities or fault on somebody else or any group of
persons.
The Court will be failing in its duty if appropriate
measures are not taken to protect its status, glory and dignity
and thereby instil confidence in the minds of everyone that the
Judiciary will uphold its authority and status at times when
people cry for justice and it will not leave any stone unturned in
order to achieve that goal.
179. With the above point of view in mind when we
consider some of the decisions cited by the members of the bar
we find that the decision reported in (2004) 5 SCC 26 (Daroga
Singh Vs. B.K.Pandey) was more or less identical to the case
on hand. That was also a case where for one single individual
who was a policeman a group of policemen indulged in vandalism
198
under the direct supervision of the higher officials which
necessitated the Court to initiate appropriate contempt action
and out of 26 police personnel who were issued with show cause
notice for contempt, 18 of them were imposed with punishment
which was also upheld by the Hon’ble Supreme Court. It will be
sufficient to make a reference to the extracted part of that
decision in the earlier part of this order.
180. While considering the submissions of Dr.Rajeev
Dhavan that the police have got every authority to remain in the
premises, that the immunity as has been provided to the
Parliament and its members cannot be applied to the Courts and
Judiciary are concerned, we do agree with the said submission of
the learned senior counsel.
But we have spelt out our own
reasons as to why we were not in a position to accept his
submission that threat perception of this Court warranted not
only their mere presence but also indulging in certain serious
actions such as lathi charge etc., in order to hold that no further
direction need be necessary. With great respect to the learned
senior counsel, we hold that the various factors which has
weighed with this Court and referred to above constraints, this
Court to hold that the action of the police who were under the
199
command
of
Commissioner
four
high
of
Police
level
police
officers
Mr.K.Radhakrishnan,
namely
the
Additional
Commissioner of Police Mr.A.K.Viswanathan, jurisdictional Joint
Commissioner
of
Police
Mr.M.Ramasubramani
and
the
jurisdictional Deputy Commissioner of Police Mr.Prem Anand
Sinha are squarely responsible and consequently they are bound
to answer to this Court as to why action for contempt should not
be taken against them for having deranged the prestigious
institution namely the Judiciary of the State by paralyzing its
activities
due
to
unprecedented
and
uncontrolled
act
of
indiscriminate lathi charge and consequential extensive damages
caused to men and material inside the High Court campus
between 2.00 pm and 6.30 pm on 19.02.2009. The plea of
Dr.Rajeev Dhavan that the act of the police was not intentionally
done cannot therefore be accepted.
Therefore, any amount of
apology offered does not deserve any merit for acceptance.
Question No.(vi) is thus answered as above.
QUESTION No.(v):181. Though one may feel what remains after the above
order as against the police, we feel that as the highest Court of
this State, some of the naked truth about the conduct of the
200
lawyers also calls for reformation. We are fully conscious of the
status of a lawyer in the society and by calling for a reformation,
we do not mean any disrespect to the profession. With all the
responsibilities instilled in this Court while at the same time being
part of the legal fraternity, we will be failing in our duty if some
of the factors which have developed in the recent past are not
brought to light and the lawyer’s community is directed to focus
their attention more towards their greater assistance in the
implementation of law and service to the society instead of
providing any scope for unscrupulous elements to take advantage
of enormous wealth and strength of power inbuilt in the legal
profession for achieving their unlawful objectives.
182. In this context, we are obliged to refer to the
untrammeled
submission
of
Mr.R.C.Paul
Kanakaraj,
learned
counsel representing the lawyers and who is also the President of
the Madras High Court Advocates Association, in the course of his
submissions when he made it clear that their agitation which
commenced on 21.01.2009, in the course of which whatever
methods adopted by them was only for the cause of the Sri
Lankan
Tamil
citizens
who
were
treated
harshly
in
the
neighbouring country namely Sri Lanka. The learned counsel also
201
submitted that whomsoever indulged in any other criminal
activities against whom criminal cases were launched is not
supported by the association of lawyers and the police will be at
liberty to proceed against them in the manner known to law and
the association or its members did not and will not support any
such alleged criminal activities indulged in by any of the accused
in those incidents.
183. While appreciating the fair statement made by the
President of the Madras High Court Advocates Association, we are
bound to point out that the abstaining of Courts by the lawyers
for whatever reason it may be does not behove well. There are
umpty number of various other methodologies by which without
causing hurt to any one or without causing damage to any one
and without disrupting the functioning of the Courts, the lawyers
who belong to a noble profession can display their protest which
would draw the attention of the concerned authorities with much
more care and concern. It is not for this Court to suggest as to
what those other peaceful methodology that can be resorted to.
184. At this juncture it will not be out of place to remind
ourselves of the fact that the Father of our Nation the great
202
Mahatma Gandhi, who fought for the Independence of this
Country was himself a member of the legal fraternity. Every one
of the other leaders namely Dr. Rajendra Prasad, Pandit
Jawaharlal Nehru, Dr.Ambedkar, Dr.Rajaji, Dr.Jaykar, Alladi
Krishnasamy Iyer and very many other great personalities who
constituted the Constitution Assembly were all lawyers. In other
words, the Magna Carta of this Country, namely the Constitution
was framed by those great personalities who all belonged to the
Lawyers community by exerting and toiling their mind, body and
soul for nearly three long years i.e between 1947 and 1950 and
that ultimately the Constitution was dedicated to the Nation on
26.01.1950.
185. It was for these reasons that the legal profession was
always placed in a high esteem by every other member of this
Society and such confidence is still reposed in this profession as it
has now become a settled position that it is the lawyers who can
lead this Country in every other pursuit, also by virtue of the
wealth of knowledge and know-how, learnt and retained by them.
When that be the credibility of the profession, the time has now
come for everyone who is part of this institution namely the legal
fraternity to stand up and question to thyself whether we are
203
proceeding in the right direction.
For the sake of immediate
attention we also wish to list out certain statistics relating to
boycott of Courts at the instance of the lawyers. The following
are the details of boycott by lawyers in each district of Tamil
Nadu during the years 2006, 2007, 2008 and 2009:
TOTAL NUMBER OF DAYS OF BOYCOTT BY LAWYERS
IN EACH DISTRICT IN TAMIL NADU DURING
THE YEARS 2006, 2007, 2008 & 2009
DETAILS FURNISHED BY THE PRINCIPAL DISTRICT JUDGES
1. COIMBATORE DISTRICT:
PLACE
2006
2007
2008
2009 upto
31.08.09
a)
Coimbatore City
11
4
31
56
b)
Tiruppur
2
3
24
36
c)
Pollachi
5
7
28
36
d)
Udumalpet
4
3
28
36
e)
Valparai
5
4
6
36
f)
Mettupalayam
3
10
4
42
g)
Palladam
5
4
24
36
h)
Avinashi
4
4
28
36
2006
2007
2008
2009 upto
31.08.09
2. CUDDALORE DISTRICT:
PLACE
a)
Cuddalore
14
13
40
8
b)
Panruti
20
30
75
18
c)
Chidambaram
20
20
14
7
d)
Neyveli
26
16
41
7
e)
Portonovo
9
25
19
17
17
f)
Tittangudi
7
9
26
g)
Katumannarkovil
1
43
7
3
h)
Virudhachalam
23
66
38
23
3. DHARMAPURI DISTRICT:
District Court constituted on 17.02.2008
PLACE
2008
2009 upto
31.08.09
a)
Dharmapuri
47
76
b)
Harur
25
46
c)
Pennagaram
27
13
d)
Pappireddypatti
15
17
e)
Palacode
12
5
204
4. DINDUGUL
PLACE
2006
2007
2008
2009 upto
31.08.09
53
a)
Dindugul
30
21
37
b)
Palani
36
55
-
19
c)
Kodaikanal
42
24
17
No Resolution
Received by
the District
Court
d)
Nilakottai
16
53
25
62
e)
Vedasandur
19
33
31
29
f)
Natham
2
21
-
47
g)
Oddanchatram
-
-
24
21
2007
2008
2009 upto
31.08.09
23
5. ERODE DISTRICT:
PLACE
2006
a)
Combined court building, Erode,
4
7
25
b)
Addl District Court, FTC IV, Bhavani
7
16
30
c)
Sub-Court, Bhavani
6
15
37
d)
I Addl District Munsif Court, Bhavani
8
15
30
e)
Judicial Magistrate, Bhavani
6
14
30
34
f)
Fast Track Court No.III, Gobi
6
3
51
g)
Sub-Court, Gobi
6
3
51
h)
District Munsif Court, Gobi
6
3
51
i)
Judicial Magistrate No.I, Gobi
6
3
51
j)
Judicial Magistrate No.II, Gobi
6
3
51
k)
Judicial Magistrate, Satyamangalam
3
4
8
21
l)
District Munsif Court, Kangeyam
4
4
1
20
m)
Fast Track Court No.III, Dharapuram
12
6
4
31
n)
Sub-Court, Dharapuram
12
6
4
31
o)
District Munsif Court, Perundurai
12
6
11
p)
DM-cum-JM, Perundurai
Nil
Nil
6
q)
DM-cum-JM, Kodumudi
8
22
5
31
21
28
6. KANCHEEPURAM DISTRICT:
PLACE
2006
2007
2008
2009 upto
31.08.09
a)
Kancheepuram
38
8
8
Entire period from
01.01.09 to
31.08.09
b)
Pallipattu
2
-
-
-
c)
Tambaram
6
2
13
18
d)
Thirukalikundram
2
1
10
17
e)
Maduantakam
1
3
24
23
f)
Uthiramerur
1
5
3
13
g)
Alandur
1
5
4
21
h)
Chengalpattu
1
1
15
19
i)
Sriperumbudur
-
-
-
1
205
7. KANNIYAKUMARI DISTRICT:
PLACE
2006
2007
2008
2009 upto
31.08.09
a)
Nagercoil
82
b)
Bhoothapandy
c)
Padmanabhapuram
d)
Eraniel
69
e)
Kuzhithurai
69
69
41
67
58
69
8. KARUR DISTRICT:
PLACE
2006
2007
2008
a)
Karur
45
32
54
b)
Kulithalai
25
39
46
2006
2007
2008
2009 upto
31.08.09
47
9. KRISHNAGIRI DISTRICT:
PLACE
2009 upto
31.08.09
a)
Krishnagiri
b)
Hosur
c)
Denkanikottai
d)
Uthangarai
23
e)
Pochampalli
24
10.
22
27
53
82
36
26
MADRAS DISTRICT:
PLACE
MADRAS
2006
2007
2008
2009 upto
31.08.09
NIL
8
8
32
2006
2007
2008
2009 upto
31.08.09
58
61
47
44
2006
2007
2008
2009 upto
31.08.09
11. MADURAI DISTRICT:
PLACE
Madurai
12. NAGAPATTINAM DISTRICT:
PLACE
a)
Nagapattinam
10
5
18
18
b)
Mayiladuthurai
15
9
29
23
c)
Sirkali
11
9
18
24
d)
Thiruvarur
3
3
8
30
e)
Thiruthuraipoondi
6
6
13
14
f)
Mannargudi
6
5
24
16
g)
Nannilam
12
5
12
34
h)
Vedaranyam
-
-
2
5
206
13. NAMAKKAL DISTRICT:
PLACE
a)
Namakkal
b)
Tiruchengode
c)
Rasipuram
d)
Paramathy
2006
2007
2008
2009 upto
31.08.09
39
23
66
82
43
38
44
14. NILGIRI DISTRICT:
PLACE
2006
2007
2008
64
a)
Ooctacamund
45
50
b)
Gudalur
3
19
9
c)
Coonoor
2
4
NIL
d)
Kothagiri
Nil
3
Nil
2006
2007
2008
27
3
87
2009 upto
31.08.09
52
15. PERAMBALUR DISTRICT:
PLACE
a)
Perambalur
b)
Ariyalur
c)
Jayankondam
2009 upto
31.08.09
51
39
37
16. PUDUCHERRY DISTRICT:
PLACE
2006
2007
2008
2009 upto
31.08.09
a)
Puducherry
19
30
70
b)
Karaikal
21
20
48 ½
c)
Mahe
-
-
-
d)
Yanam
5
2
-
2006
2007
2008
2009 upto
31.08.09
31
46
68
25
2006
2007
2008
2009 upto
31.08.09
47
17. PUDUKOTTAI DISTRICT:
PLACE
Pudukottai
18. RAMANATHAPURAM DISTRICT:
PLACE
a)
Ramanathapuram
52
68
45
b)
Parmakudi
42
55
44
c)
Mudukalathur
64
55
38
d)
Kamuthi
49
29
46
e)
Thiruvadanai
23
40
33
f)
Rameswaram
69
55
33
19. SALEM DISTRICT:
46
207
PLACE
a)
Salem
b)
Athur
c)
Sankagiri
d)
Mettur
2006
2007
2008
2009 upto
31.08.09
41
16
25
41
19
43
52
20. SIVAGANGAI DISTRICT:
PLACE
2006
2007
2008
a)
District Court, Sivagangai
61
46
59
b)
CJM Court, Sivagangai
61
46
59
c)
Sub Court, Sivagangai
61
46
59
d)
DT. Munsif Court Sivagangai
61
46
59
e)
JM Court No.I, Sivagangai
61
46
59
f)
JM Court No.II, Sivagangai
61
46
59
g)
Sub Court, Devakottai
40
19
41
h)
DT. Munsif Court, Devakottai
40
19
41
19
41
i)
JM Court, Devakottai
40
j)
PDM Cum JM Court, Karaikudi
50
50
35
k)
Addl.DM Court, Manamadurai
50
50
35
2009 upto
31.08.09
38
44
40
l)
PDM cum DM Court, Manamadurai
40
30
46
m)
Addl. DM cum JM Court, Manamadurai
40
30
46
48
n)
DM cum JM Court, Tirupathur
25
11
42
38
o)
DM cum JM Court, Illyangudi
20
49
24
42
21. THANJAVUR DISTRICT:
PLACE
Thanjavur
2006
2007
2008
2009 upto
31.08.09
34
34
39
46
2006
2007
2008
2009 upto
31.08.09
22. THENI DISTRICT:
PLACE
a)
Theni
46
20
44
26
b)
Periyakulam
49
20
94
26
c)
Uthamapalayam
27
15
66
22
d)
Bodinayackanur
35
61
43
30
e)
Andipatti
54
32
43
33
2006
2007
2008
2009 upto
31.08.09
23. TIRUCHIRAPALLI DISTRICT:
PLACE
a)
Tiruchirapalli
63
b)
Manapparai
36
11
16
42
35
c)
Thuraiyur
d)
Musiri
41
e)
Lalgudi
83
24. THOOTHUKUDI DISTRICT:
208
PLACE
2006
2007
2008
2009 upto
31.08.09
a)
Thoothukudi
41
47
61
40
b)
Kovilpatti
35
51
50
68
c)
Srivaikuntam
61
23
63
41
d)
Sathankulam
44
51
61
45
e)
Tiruchendur
16
23
78
39
f)
Vilathikulam
36
40
60
42
2006
2007
2008
2009 upto
31.08.09
25. TIRUNELVELI DISTRICT:
PLACE
a)
Tirunelveli
37
7
45
55
e)
Ambasamudram
35
34
54
80
b)
Cheramahadevi
25
16
30
75
c)
Tenkasi
21
52
38
42
d)
Shencottah
20
44
31
44
f)
Sankarankovil
28
38
54
48
g)
Sivagiri
19
37
54
47
h)
Nanguneri
28
33
31
50
i)
Valliyoor
43
59
35
66
2006
2007
2008
2009 upto
31.08.09
26. TIRUVALLUR DISTRICT:
PLACE
a)
Tiruvallur
1+3
13
56
45
b)
Poonamallee
1+8
8
12
1
c)
Ponneri
1
4
2
2
d)
Thiruvottriyur
Nil
2
7
23
e)
Tiruttani
1
31
4
16
2006
2007
2008
2009 upto
31.08.09
27. THIRUVANNAMALAI DISTRICT:
PLACE
a)
Thiruvannamalai
16
25
29
23
b)
Polur
3
-
28
22
c)
Cheyyar
6
3
28
21
d)
Arni
3
17
21
12
e)
Chengam
3
7
28
32
f)
Vandavasi
22
23
34
31
28. TIRUVARUR DISTRICT:
District Court constituted on 20.09.2008
PLACE
2008
2009 upto
31.08.09
a)
Tiruvarur
4
30
b)
Mannargudi
5
16
c)
Nannilam
11
34
29. VELLORE DISTRICT:
209
PLACE
2006
2007
2008
2009 upto
31.08.09
50
39
50
43
a)
Vellore
b)
Arcot
-
-
39
40
c)
Wallajah
-
39
32
37
d)
Ranipet
33
33
26
40
e)
Solinghur
51
59
33
5
f)
Tirupattur
52
21
34
48
g)
Ambur
19
10
13
35 1/2
g)
Vaniyambadi
71
41
18
33
i)
Arakkonam
3
39
52
4
j)
Gudiyatham
64
52
79
40
2006
2007
2008
2009 upto
31.08.09
30. VILLUPURAM DISTRICT:
PLACE
a)
Villupuram
44
b)
Tindivanam
53
53
c)
Gingee
d)
Kallakurichi
e)
Ulundurpet
25
42
68
39
32
f)
Vanur
29
g)
Tirukoilur
21
h)
Sankarapuram
5
31. VIRUDHUNAGAR DISTRICT:
PLACE
2006
2007
2008
a)
Virudhunagar
38
59
23
b)
Srivilluputhur
25
25
45
c)
Rajapalayam
12
5
8
d)
Sivakasi
31
48
38
e)
Sattur
51
59
48
f)
Aruppukottai
44
25
39
2009 upto
31.08.09
62
TOTAL NUMBER OF DAYS OF BOYCOTT BY LAWYERS IN
THE PRINCIPAL SEAT OF MADRAS HIGH COURT
& MADURAI BENCH OF MADRAS HIGH COURT
DURING THE YEARS 2006, 2007, 2008 & 2009.
PLACE
2006
2007
2008
2009 upto
31.08.09
Madras High Court
Particulars not available
35
Madurai Bench of Madras High Court
Particulars not available
37
Boycott Particulars received from the
210
Madras High Court Advocates' Association
for the year 2009
Sl.
No
Date
Reason
1
29.01.2009
to
09.02.2009
Condemning the Sri Lankan Government
perpetrating genocide against Tamilians in
Sri Lanka.
2
11.02.2009
to
12.02.2009
After one day's work, MHAA continued the
boycott
3
17.02.2009
to
23.03.2009
Opposing the amendments made to Cr.P.C.
including the 19.02.2009 clash betwen the
police and the advocates.
4
Condemning the Government of Tamil
'06.07.2009 Nadu for not complying with the Hon'ble
High Court's Order dated 18.03.2009 in
respect of 19.02.2009 attach on lawyers.
5
31.07.2009
As per the call given by the Federation of
District and Subordinate Courts Advocates
Association and to take action against the
officers who committed offence on
19.02.2009.
No. of
days
8
2
23
1
1
186. A cursory glance of the above particulars shows that
very many man-days of the Courts were lost. Since there is hue
and cry everywhere that delayed justice is denied justice, it is
imperative that the boycott of Courts by lawyers is stopped once
and for all.
187. In fact on days of boycott, when out of necessity some
of the parties appear before us, however much, the Court exhibit
its anxiety to go for the rescue and render justice, it should be
211
stated that due to inexperience and over anxiety of the parties
they are either not in a position to place the facts in full before
the Court and thereby disable the Court to render full justice and
in many cases, the parties because of their inability to express
their grievance remain as silent sufferers.
188. In this context, the submission of the learned
Advocate General that the image of the lawyers in the opinion of
the common man is highly eroded though may appear to be bit
harsh is the real fact which has to be accepted with a pinch of
salt. There is no gain saying that as lawyers belong to a very
high clan and as such entitled for certain privileges in the Society,
while at the same time when they fail to fulfill the obligations
arising out of such status which the lawyers community is obliged
to reciprocatively display to the Society at large, the same would
certainly gain an impression adverse to their interest. In this
context, the further fact remains as to, of the whole lot of the
lawyers how many of them are really interested in abstaining
from Courts. Therefore, it is high time that the Associations take
a very pragmatic approach and take a firm decision to resort to
any other passive method by which they can exhibit their protest
in a subtle way instead of resorting to Boycott of Courts.
212
189. Apart from resorting to boycott, in the recent past the
situation has become so vulnerable that certain other personality
in the Society wanted to take advantage of the lawyers unity to
achieve their other goals. In fact in the decision reported in
(2007) 2 MLJ 1 (Madras High Court Advocates Association
Vs State of Tamil Nadu) the Division Bench of this Court has
taken pains to analyze the various factors relating to boycott
being resorted to by the members of the Bar where this Court
has noted that because of such frequent agitation either at
district level or at the state level they were being treated shabbily
by the police in the Society. This Court also pointed out that as a
sequel to the frequent boycott of Courts, the work in the Courts
suffer to a very large extent and that it may even paralyze the
functioning of the judiciary which will be totally against public
interest. The Division Bench has expressed its anguish in the
following words in paragraph 18 of its order:
“18. We are constrained to observe that
while going through the norms fixed for the
Subordinate
Courts and when remarks
have been received from many of the
Subordinate Courts that the norms have
not been able to be achieved because of
213
the prolonged strike by the advocates.
This is a serious issue and if it is
allowed
to
proceed,
paralyse
the
judiciary,
which
it
may
functioning
is
not
even
of
in
the
public
interest.” (Emphasis added)
The Division Bench ultimately though it fit to constitute a
Committee at the State Level as stated in paragraph 22.1 of its
order which reads as under:
“22.1.
The
lessons
learnt
from
the
agitations leading to the ordering of a
Commission of Inquiry indicates certain
things.
One precious judicial time was
wasted due to the lawyers agitations. The
decision to go on Court boycott was rather
emotional than based on reason, because
both the Commissions found in all the
three incidents referred to them were that
the incidents complained of was either
exaggerated or that the lawyers for whom
the Bar went on strike were themselves
were on the wrong. The other lesson was
that
the
stake
(sis
State)
was
not
responding to the issue of Court boycott
with
utmost
procrastinating
seriousness
and
in
a
finding
was
proper
solution. In the ultimate analysis the issue
arising out of the direct action of the Bar
214
requires
an
intervention.
urgent
and
appropriate
The need of the hour is to
evolve a suitable mechanism which can
quickly find a solution to any unpleasant
stand-off between the Bar and Police in
future. Ultimately this alone will prevent a
situation
leading
to
catastrophy.
Appointment of Commissions of Inquiry are
not
only
enormous
time
cost
consuming
energies
but
are
with
wasted.
Further, in a probe by an independent
authority the Police is not the losers and
they need not apprehend any partisan
probe.
was
In both Commissions, the report
balanced
and
the
Commissioners
found that in a surcharged atmosphere the
truth was the casualty.”
Again in paragraph 23, the Division Bench issued certain
directions as to how the working of the Committee should be
made more purposeful which is as follows:
“23.
It
goes
without
saying
that
the
constitution of the Committee is the need
of the hour and the Court cannot afford to
lose its precious judicial time due to the
frequent Court boycotts indulged by the
advocates and, therefore, we direct the
State of Tamil Nadu (first respondent
herein)
to
immediately
issue
the
215
administrative
G.O.
constituting
the
Committee, in any event, within a period of
two weeks’ from the date of receipt of a
copy
of
this
order.
In
view
of
the
constitution of the Committee with the
highest dignitaries of
the State,
it
is
expected that the members of the Bar,
respective Bar Associations including their
Federations and the Tamil Nadu State Bar
Council
will
hereafter
maintain
utmost
restraint in giving a call for any Court
boycott and as agreed to by them, despite
any provocation.
They are expected to
approach the State Level Co-ordination
Committee formed with a view to resolve
any accusation made against the Police
regarding their misbehaviour towards the
members of the Bar and abide by the
decision of the Committee in this regard.”
190. In an earlier decision of this Court reported in 1995
Cri.L.J. 1956 (In Re: Rajendran and others), the Division
Bench held as under in paragraph 56 and 97:
“56.
Mrs.Prabha
Sridevan,
President,
Women Lawyers’ Association, submitted
that the after-noon incident had a close
connection with the morning closure of
gates Advocates as well as policemen,
216
were important limbs, for the former were
right protectors – while the latter were law
enforcers.
The tension, if any, between
them must be comfortably resolved.
orientation
programmes
must
Rebe
organized.
*****
97. We are very clear and let us transmit a
certain message. We are totally conscious,
that we have dealt with the contemners,
rather lightly,
outcome
but that has
after
provoking
serious
process
been the
and
thought
the
positive
and
response of ours, to the fervent, sincere
and
responsible
plea,
backed
up
with
purposeful panorama of a possible good
ear
ahead,
made
by
learned
senior
counsel, learned Advocate General and the
Presidents
of
various
Associations
of
Advocates.
Let not any one walk out of
this Court Hall with an impression, that
whatever be the gravity of the offence, one
could always escape lightly.
The instant
untoward incident, has been analysed by
all concerned, and the answer in unison
was that let this episode serve as a sure
foundation or eye opener for fostering of a
better tomorrow, with an assurance that
recurrence, if any, though chances may be
217
bleak, will have to be gravely taken note of
and appropriate punishment meted out.”
191. In this context it will be worthwhile to refer to some of
the decisions of the Hon’ble Supreme Court reported in (2001) 1
SCC 118 (Ramon Services (P) Ltd. Vs. Subhash Kapoor),
(2003) 2 SCC 45 (Harish Uppal (Ex-Capt.) Vs. Union of
India)
and
(2006)
9
SCC
295
(Common
Cause,
A
Registered Society Vs. Union of India).
192. The Hon’ble Supreme Court has extensively dealt with
the various pit falls in the boycott resorted to by the Advocates
and have held as under in paragraph 35 in the decision reported
in (2003) 2 SCC 45 (Harish Uppal (Ex-Capt.) Vs. Union of
India)
“35. In conclusion, it is held that lawyers
have no right to go on strike or give a
call for boycott, not even on a token
strike. The protest, if any is required,
can
only
be
statements, TV
by
giving
interviews,
press
carrying
out of court premises banners and/or
placards, wearing black or white or
any colour armbands, peaceful protest
marches outside and away from court
218
premises, going on dharnas or relay
fasts etc. It is held that lawyers holding
vakalats on behalf of their clients cannot
refuse to attend courts in pursuance of a
call for strike or boycott. All lawyers must
boldly refuse to abide by any call for strike
or boycott. No lawyer can be visited with
any
adverse
consequences
by
the
Association or the Council and no threat or
coercion of any nature including that of
expulsion can be held out. It is held that
no Bar Council or Bar Association can
permit
calling
purposes
of
of
a
meeting
considering
a
call
for
for
strike or boycott and requisition, if
any,
for
such
meeting
must
be
ignored. It is held that only in the rarest
of rare cases where the dignity, integrity
and independence of the Bar and/or the
Bench are at stake, courts may ignore
(turn a blind eye) to a protest abstention
from work for not more than one day. It is
being clarified that it will be for the court to
decide whether or not the issue involves
dignity or integrity or independence of the
Bar and/or the Bench. Therefore in such
cases the President of the Bar must first
consult the Chief Justice or the District
Judge before advocates decide to absent
219
themselves from court. The decision of the
Chief Justice or the District Judge would be
final and have to be abided by the Bar. It is
held that courts are under no obligation to
adjourn matters because lawyers are on
strike. On the contrary, it is the duty of all
courts to go on with matters on their
boards even in the absence of lawyers. In
other words, courts must not be privy to
strikes or calls for boycotts. It is held that
if a lawyer, holding a vakalat of a
client, abstains from attending court
due
to
a
strike
call,
he
shall
be
personally liable to pay costs which
shall be in addition to damages which
he might have to pay his client for loss
suffered by him.” (Emphasis added)
193. The Hon’ble Supreme Court has held as under in
paragraph 4 of the decision reported in (2006) 9 SCC 295
(Common Cause, A Registered Society Vs. Union of India)
“4. The Constitution Bench has, in Ex Capt.
Harish Uppal case culled out the law in the
following terms: (SCC pp.64 & 71-74, paras
20-21 & 34-36)
“20. Thus the law is already well
settled. It is the duty of every advocate
who has accepted a brief to attend
220
trial, even though it may go on day to
day and for a prolonged period. It is
also settled law that a lawyer who has
accepted
a
brief
cannot
refuse
to
attend court because a boycott call is
given by the Bar Association. It is
settled law that it is unprofessional as
well as unbecoming for a lawyer who
has accepted a brief to refuse to attend
court even in pursuance of a call for
strike or boycott by the Bar Association
or the Bar Council. It is settled law
that courts are under an obligation
to hear and decide cases brought
before them and cannot adjourn
matters merely because lawyers
are on strike. The law is that it is the
duty and obligation of courts to go on
with matters or otherwise it would
tantamount to becoming a privy to the
strike. It is also settled law that if a
resolution
is
Associations
passed
expressing
by
want
Bar
of
confidence in judicial officers, it would
amount to scandalising the courts to
undermine its authority and thereby
the advocates will have committed
contempt
of
court.
Lawyers
have
known, at least since Mahabir Singh
221
case
that
if
they
participate
in
a
boycott or a strike, their action is ex
facie bad in view of the declaration of
law by this Court. A lawyer’s duty is to
boldly ignore a call for strike or boycott
of court(s). Lawyers have also known,
at least since Ramon Services case,
that
the
answerable
advocates
for
the
would
be
consequences
suffered by their clients if the nonappearance was solely on grounds of a
strike call.
21. It must also be remembered
that an advocate is an officer of
the court and enjoys special status
in society. Advocates have obligations
and
duties
to
ensure
smooth
functioning of the court. They owe a
duty to their clients. Strikes interfere
with
administration
They
cannot
thus
of
justice.
disrupt
court
proceedings and put interest of
their clients in jeopardy.
*****
34. One last thing which must be
mentioned
is
that
the
right
of
appearance in courts is still within the
control
and
jurisdiction
of
courts.
222
Section 30 of the Advocates Act has
not been brought into force and rightly
so. Control of conduct in court can only
be within the domain of courts. Thus
Article 145 of the Constitution of India
gives
to
the
Supreme
Court
and
Section 34 of the Advocates Act gives
to the High Court power to frame rules
including rules regarding condition on
which a person (including an advocate)
can practise in the Supreme Court
and/or in the High Court and courts
subordinate thereto. Many courts have
framed rules in this behalf. Such a rule
would be valid and binding on all. Let
the Bar take note that unless selfrestraint is exercised, courts may
now
have
to
consider
framing
specific rules debarring advocates
guilty
of
contempt
unprofessional
or
and/or
unbecoming
conduct, from appearing before the
courts. Such a rule if framed would
not have anything to do with the
disciplinary
jurisdiction
of
the
Bar
Councils. It would be concerning the
dignity and orderly functioning of the
courts. The right of the advocate to
practise envelops a lot of acts to be
223
performed by him in discharge of his
professional
duties.
Apart
from
appearing in the courts he can be
consulted by his clients, he can give his
legal opinion whenever sought for, he
can
draft
instruments,
pleadings,
affidavits or any other documents, he
can
participate
involving
legal
in
any
conference
discussions,
he
can
work in any office or firm as a legal
officer, he can appear for clients before
an arbitrator or arbitrators etc. Such a
rule would have nothing to do with all
the acts done by an advocate during
his practice. He may even file vakalat
on behalf of a client even though his
appearance inside the court is not
permitted. Conduct in court is a matter
concerning the court and hence the Bar
Council cannot claim that what should
happen inside the court could also be
regulated by them in exercise of their
disciplinary
powers.
The
right
to
practise, no doubt, is the genus of
which the right to appear and conduct
cases in the court may be a specie. But
the right to appear and conduct cases
in the court is a matter on which the
court
must
and
does
have
major
224
supervisory
and
controlling
power.
Hence courts cannot be and are not
divested of control or supervision of
conduct in court merely because it may
involve the right of an advocate. A rule
can stipulate that a person who has
committed contempt of court or has
behaved unprofessionally and in an
unbecoming manner will not have the
right to continue to appear and plead
and conduct cases in courts. The Bar
Councils
cannot
regulation
overrule
concerning
the
such
a
orderly
conduct of court proceedings. On the
contrary, it will be their duty to see
that such a rule is strictly abided by.
Courts of law are structured in such a
design
as
to
evoke
respect
and
reverence to the majesty of law and
justice. The machinery for dispensation
of justice according to law is operated
by the court. Proceedings inside the
courts are always expected to be held
in a dignified and orderly manner. The
very sight of an advocate, who is guilty
of contempt of court or of unbecoming
or unprofessional conduct, standing in
the court would erode the dignity of
the court and even corrode its majesty
225
besides impairing the confidence of the
public in the efficacy of the institution
of the courts. The power to frame such
rules should not be confused with the
right to practise law. While the Bar
Council can exercise control over the
latter, the courts are in control of the
former.
This
brought
out
language
distinction
by
in
the
Section
is
clearly
difference
49
of
in
the
Advocates Act on the one hand and
Article 145 of the Constitution of India
and Section 34(1) of the Advocates Act
on
the
other.
Section
49
merely
empowers the Bar Council to frame
rules laying down conditions subject to
which an advocate shall have a right to
practise i.e. do all the other acts set
out above. However, Article 145 of the
Constitution of India empowers the
Supreme
Court
to
make
rules
for
regulating this practice and procedure
of the court including inter alia rules as
to persons practising before this Court.
Similarly Section 34 of the Advocates
Act empowers High Courts to frame
rules, inter alia to lay down conditions
on
which
an
advocate
shall
be
permitted to practise in courts. Article
226
145 of the Constitution of India and
Section 34 of the Advocates Act clearly
show that there is no absolute right to
an advocate to appear in a court. An
advocate appears in a court subject to
such conditions as are laid down by the
court. It must be remembered that
Section 30 has not been brought into
force, and this also shows that there is
no absolute right to appear in a court.
Even if Section 30 were to be brought
into force control of proceedings in
court will always remain with the court.
Thus even then the right to appear in
court will be subject to complying with
conditions laid down by courts just as
practice
outside
courts
would
be
subject to conditions laid down by Bar
Council of India. There is thus no
conflict
or
clash
between
other
provisions of the Advocates Act on the
one hand and Section 34 or Article 145
of the Constitution of India on the
other.
35. In conclusion, it is held that
lawyers have no right to go on
strike or give a call for boycott, not
even on a token strike. The protest,
227
if any is required, can only be by giving
press
statements,
TV
interviews,
carrying out of court premises banners
and/or placards, wearing black or white
or
any
colour
protect
marches
armbands,
outside
peaceful
and
away
from court premises, going on dharnas
or relay fasts, etc. It is held that
lawyers holding vakalats on behalf of
their clients cannot refuse to attend
courts in pursuance of a call for strike
or boycott. All lawyers must boldly
refuse to abide by any call for strike or
boycott. No lawyer can be visited with
any
adverse
consequences
by
Association
or the Council and
threat
coercion
or
of
any
the
no
nature
including that of expulsion can be held
out. It is held that no Bar Council or
Bar Association can permit calling of a
meeting for purposes of considering a
call
for
strike
or
boycott
and
requisition, if any, for such meeting
must be ignored. It is held that only in
the rarest of rare cases where the
dignity, integrity and independence of
the Bar and/or the Bench are at stake,
courts may ignore (turn a blind eye) to
a protest, abstention from work for not
228
more than one day. It is being clarified
that it will be for the court to decide
whether
or
not the
issue
involves
dignity or integrity or independence of
the Bar and/or the Bench. Therefore in
such cases the President of the Bar
must first consult the Chief Justice or
the District Judge before advocates
decide
to
absent
themselves
from
court. The decision of the Chief Justice
or the District Judge would be final and
have to be abided by the Bar. It is held
that courts are under no obligation to
adjourn matters because lawyers are
on strike. On the contrary, it is the
duty of all courts to go on with matters
on their boards even in the absence of
lawyers. In other words, courts must
not be privy to strikes or calls for
boycotts. It is held that if a lawyer,
holding a vakalat of a client, abstains
from attending court due to a strike
call, he shall be personally liable to pay
costs which shall be in addition to
damages which he might have to pay
his client for loss suffered by him.
36. It is now hoped that with the
above clarifications, there will be
229
no strikes and/or calls for boycott.
It is hoped that better sense will
prevail and self-restraint will be
exercised.
The
petitions
stand
disposed of accordingly.”
The Court also dealt with the role of
Bar Councils on the following terms:
(SCC pp. 66-68, paras 25-26)
“25. In the case of Supreme Court
Bar Assn. v. Union of India it has
been
held
misconduct
that
may
also
professional
amount
to
contempt of court (para 21). It has
further been held as follows: (SCC
pp.444-46, paras 79-80)
‘79. An advocate who is found guilty
of contempt of court may also, as
already
noticed,
be
guilty
of
professional misconduct in a given
case but it is for the Bar Council of
the State or Bar Council of India to
punish
that
debarring
advocate
him
from
by
either
practice
or
suspending his licence, as may be
warranted,
circumstances
in
the
of
each
facts
case.
and
The
learned Solicitor General informed us
that there have been cases where the
Bar Council of India taking note of the
230
contumacious
and
objectionable
conduct of an advocate, had initiated
disciplinary proceedings against him
and
even
punished
“professional
him
misconduct”,
on
for
the
basis of his having been found guilty
of committing contempt of court. We
do not entertain any doubt that the
Bar Council
of the State or Bar
Council of India, as the case may be,
when
apprised
of
the
established
contumacious conduct of an advocate
by the High Court or by this Court,
would rise to the occasion, and take
appropriate action against such an
advocate. Under Article 144 of the
Constitution “all authorities, civil and
judicial, in the territory of India shall
act in aid of the Supreme Court”. The
Bar Council which performs a public
duty
and
is
charged
with
the
obligation to protect the dignity of the
profession and maintain professional
standards
and
etiquette
is
also
obliged to act “in aid of the Supreme
Court”.
It
must,
whenever
facts
warrant, rise to the occasion and
discharge its duties uninfluenced by
the
position
of
the
contemnor
231
advocate. It must act in accordance
with
the
prescribed
procedure,
whenever its attention is drawn by
this Court to the contumacious and
unbecoming conduct of an advocate
which has the tendency to interfere
with due administration of justice. It
is possible for the High Courts also to
draw the attention of the Bar Council
of the State to a case of professional
misconduct of a contemnor advocate
to enable the State Bar Council to
proceed in the manner prescribed by
the
Act
and
the
rules
framed
thereunder. There is no justification
to
assume that the Bar Councils
would not rise to the occasion, as
they are equally responsible to uphold
the dignity of the courts and the
majesty
of
law
and
prevent
any
interference in the administration of
justice.
Learned
counsel
for
the
parties present before us do not
dispute and rightly so that whenever
a court of record records its findings
about the conduct of an advocate
while finding him guilty of committing
contempt of court and desires or
refers the matter to be considered by
232
the
Bar
Council
concerned,
appropriate action should be initiated
by
the
Bar
Council
concerned
in
accordance with law with a view to
maintain the dignity of the courts and
to uphold the majesty of law and
professional standards and etiquette.
Nothing is more destructive of public
confidence in the administration of
justice than incivility, rudeness or
disrespectful conduct on the part of a
counsel
towards
disregard
by
the
the
court
court
of
or
the
privileges of the Bar. In case the Bar
Council,
even
after
receiving
“reference” from the Court, fails to
take
action
against
the
advocate
concerned, this Court might consider
invoking its powers under Section 38
of the Act by sending for the record of
the proceedings from the Bar Council
and passing appropriate orders. Of
course, the appellate powers under
Section 38 would be available to this
Court
only
and
not
to
the
High
Courts. We, however, hope that such
a situation would not arise.
233
80.
In a
given
case
it
may be
possible, for this Court or the High
Court,
to
prevent
the
contemnor
advocate to appear before it till he
purges himself of the contempt but
that
is
much
different
from
suspending or revoking his licence or
debarring
him
to
practise
as
an
advocate. In a case of contemptuous,
contumacious,
unbecoming
or
blameworthy conduct of an Advocateon-Record,
this
Court
possesses
jurisdiction, under the Supreme Court
Rules itself, to withdraw his privilege
to practise as an Advocate-on-Record
because that privilege is conferred by
this Court and the power to grant the
privilege includes the power to revoke
or suspend it. The withdrawal of that
privilege, however, does not amount
to suspending or revoking his licence
to practise as an advocate in other
courts or tribunals.’
Thus a Constitution Bench of this
Court
has
held
that
the
Bar
Councils are expected to rise to
the
occasion
as
they
are
responsible to uphold the dignity
234
of courts and majesty of law and
to
prevent
interference
in
administration of justice. In our
view it is the duty of the Bar Councils
to
ensure
that
unprofessional
there
and/or
is
no
unbecoming
conduct. This being their duty no Bar
Council can even consider giving a
call for strike or a call for boycott. It
follows that the Bar Councils and
even
Bar
consider
Associations
or
take
can
seriously
never
any
requisition calling for a meeting to
consider a call for a strike or a call for
boycott. Such requisitions should be
consigned to the place where they
belong viz. the waste-paper basket.
In case any Association calls for a
strike or a call for boycott, the State
Bar Council concerned and on its
failure the Bar Council of India must
immediately take disciplinary action
against the advocates who give a call
for
strike
and
if
the
committee
members permit calling of a meeting
for
such
purpose,
against
the
committee members. Further, it is
the duty of every advocate to
boldly ignore a call for strike or
235
boycott.
26. It must also be noted that courts
are not powerless or helpless. Section
38 of the Advocates Act provides that
even in disciplinary matters the final
Appellate Authority is the Supreme
Court. Thus even if the Bar Councils
do not rise to the occasion and
perform
their
duties
by
taking
disciplinary action on a complaint
from a client against an advocate for
non-appearance by reason of a call
for strike or boycott, on an appeal the
Supreme Court can and will. Apart
from
this,
as
set
out
in
Ramon
Services case every court now should
and must mulct advocates who hold
vakalats
but
still
refrain
from
attending courts in pursuance of a
strike call, with costs. Such costs
would be in addition to the damages
which the advocate may have to pay
for the loss suffered by his client by
reason of his non-appearance.”
Apart from reiterating the above law, we do
not propose to take any further action. The
contempt
notices
(Emphasis added)
stand
discharged.”
236
194. The Hon’ble Supreme Court has held as under in
paragraphs 22, 23 and 25 in the decision reported in (2001) 1
SCC 118 (Ramon Services (P) Ltd. Vs. Subhash Kapoor)
“22.
Generally
strikes
are
antithesis
of
progress, prosperity and development. Strikes
by the professionals including the advocates
cannot be equated with strikes undertaken by
the industrial workers in accordance with the
statutory provisions. The services rendered by
the advocates to their clients are regulated by
a contract between the two besides statutory
limitations,
restrictions
and
guidelines
incorporated in the Advocates Act, the rules
made thereunder and rules of procedure
adopted by the Supreme Court and the High
Courts. Abstaining from the courts by the
advocates, by and large, does not only affect
the persons belonging to the legal profession
but also hampers the process of justice
sometimes urgently needed by the consumers
of justice, the litigants. Legal profession is
essentially a service-oriented profession. The
relationship between the lawyer and his client
is one of trust and confidence.
23. With the strike by the lawyers, the
process of court intended to secure justice is
obstructed which is unwarranted under the
237
provisions of the Advocates Act. Law is no
trade
and
briefs
of
the
litigants
not
merchandise. This Court in Bar Council of
Maharashtra v. M.V. Dabholkar placed on
record its expectations from the Bar and
observed: (SCC pp.301-02, para 24)
“24. We wish to put beyond cavil the
new
call
to
the
lawyer
in
the
economic order. In the days ahead,
legal aid to the poor and the weak,
public interest litigation and other
rule-of-law
demand
responsibilities
a
whole
new
will
range
of
responses from the Bar or organised
social groups with lawyer members.
Indeed, the hope of democracy is the
dynamism of the new frontiersmen of
the law in this developing area and
what
we
have
observed
against
solicitation and alleged profit-making
vices
are
distant
from
such
free
service to the community in the jural
sector as part of the profession’s tryst
with the people of India.”
*****
25.
This
Court
Sadarangani
v.
in
Tahil
Ram
Ramchand
Issardas
Issardas
Sadarangani while deprecating the decreasing
238
trend of service element and increasing trend
of
commercialisation
of
legal
profession,
pointed out that it was for the Members of the
Bar to act and take positive steps to remove
such an impression before it is too late. By
striking
work,
the
lawyers
fail
in
their
contractual and professional duty to conduct
the cases for which they are engaged and
paid. In Common Cause, A Regd. Society v.
Union of India it was observed: (SCC p.
558, para 1)
“Since litigants have a fundamental
right to speedy justice as observed in
Hussainara
Khatoon
(I)
v.
Home
Secy., State of Bihar it is essential
that cases must proceed when they
appear on board and should not
ordinarily be adjourned on account of
the absence of the lawyers unless
there are cogent reasons to do so. If
cases get adjourned time and again
due to cessation of work by lawyers it
will in the end result in erosion of
faith in the justice delivery system
which will harm the image and dignity
of the court as well.”
239
195. Taking a clue and guided by the above decisions we
state that time has now come for this Court to put things straight
and make the message loud and clear that hereafter under the
guise of boycott of Courts no hindrance should be caused to the
litigant public or the working of the Court.
196. As far as the guidelines issued by the Government of
India for preserving the security of this institution is concerned as
per
the
direction
contained
in
the
relevant
letter
No.VI.23014/79/2005-VS, dated 31.05.2007 and the subsequent
order dated 17.11.2008 and the steps taken by the Madras High
Court Security Committee revising the Security arrangement
system as was implemented from 28.01.2009, should be restored
forthwith.
197. The imposition of ban ordered by the Division Bench in
the decision reported in (2007) 2 MLJ 1 (Madras High Court
Advocates Association Vs State of Tamil Nadu) should be
strictly enforced.
198. The ban imposed (W.P.No.7646 of 2006 dated
20.06.2006) for any one to hold meeting inside the High Court
240
campus other than regular meetings of the Association or any
special meetings in their association premises shall be strictly
adhered and no political party affiliation shall be permitted inside
the High Court campus and other Court premises throughout the
State for holding any meeting or demonstration or any other
form of agitation inside the premises.
199. In this context, the recent order of the Hon’ble
Supreme Court in this case itself dated 26.02.2009, namely that
the advocates should not cause any disturbance to the Court
proceedings and should not shout slogans inside the Court
premises as well as no meeting should be held in the Court
premises without the permission of the Chief Justice except other
meetings in their Association premises shall be implemented
forthwith by the Registry.
200. Having expressed our grave concern of the litigant
public and the emergent need of this institution to come up to the
expectations of the public at large, we hold that by implementing
the
severe
security
measures
approved
by
the
Security
Committee of this Court in the interest of the institution, the
implementation of it will be unscrupulously followed and it will be
241
the responsibility of the members of the Bar to extend their
cooperation in its implementation. Question No.(v) is answered
in the above terms.
201. As far as the various criminal cases listed out in
between pages 167 and 243 of the Respondents Volume-I is
concerned, if there is no other impediment by way of Court
orders or otherwise there is no reason why the police should fail
to prosecute those proceedings without any further delay.
202. Having thus answered the various questions posed for
consideration and having regard to our consensual conclusion on
various issues, we deem it appropriate to give our common
conclusions and directions contained in paragraph Nos. 602 to
607.
*****
R.BANUMATHI, J.
203. I had the benefit of going through the Order of my learned
Brother Justice F.M.Ibrahim Kalifullah,J.
views of my learned Brother.
I fully agree with the
While concurring with conclusions and
directions, I wish to express my views on the various issues and
contentious points raised.
242
204. In respect of unfortunate incident on 19.2.2009 in the High
Court campus, on 19.2.2009 the Hon'ble Acting Chief Justice had
passed suo-moto order which was taken up in W.P.No.3335/2009.
W.P.Nos.3703, 3704, 3705 and 3910/2009 came to be filed by various
Lawyers Association praying to initiate appropriate proceedings against
those Officers responsible for the brutal attack on the Advocates in the
High Court campus on 19.02.2009.
205. Since all the Writ Petitions and Crl.O.Ps. arise out of the
same facts and the issue and question of law involved are one and the
same, all the Writ Petitions and Crl.O.Ps. were taken up together and
disposed by this Common Order.
For the sake of convenience, the
parties (particularly the Respondents) are referred to, as per their
array in W.P.No.3705/2009.
206. Events prior to 19.02.2009:For quite some time, the lawyers practising in Madras High Court
and the Subordinate Courts owing allegiance
and sympathizing with
the cause of Sri Lankan Tamils resorted to organising meetings and
demonstrations in and around High Court premises.
Condemning
genocide of Tamils in Sri Lanka, lawyers decided to boycott the Courts
from 29.01.2009 in support of innocent Tamil population in Sri Lanka.
The function of the Courts were paralysed by the Advocates on strike
243
and those Advocates who were discharging their professional duty
were forced to come out of the Court Halls.
207. On 17.2.2009, Writ Appeal Nos.181 to 183/2009 relating
to taking over of the administration of Chidambaram Natarajar Temple
were listed for hearing in the Court of Justice P.K.Misra and
K.Chandru, JJ.
At about 10.00 A.M. Dr. Subramaniam Swamy,
President of Janata Party who has been given 'Z' category protection
by the Government came to Court Hall No.III and was waiting in the
Court to argue his case to implead himself in the said pending Writ
Appeals.
At about 11.45 A.M., 20 Advocates, who were allegedly
agitating in support of Sri Lankan Tamils came to the Court shouting
slogans condemning the Central and State Governments and the
Police. Shouting slogans against Dr. Subramaniam Swamy, the group
of agitating lawyers attacked Dr. Subramaniam Swamy and also the
Police who tried to intervene. The slogans shouted by the lawyers in
Tamil were recorded by the Division Bench of this Court in its order as
"Brahmin dog down down, and Rajiv Gandhi killer go away". The order
further states that the crowd had shouted many other filthy slogans
and such unruly behaviour continued for about 15 minutes despite
warnings given by the learned Judges.
The learned Judges directed
the Registry to place the said order before the Hon'ble ACJ and also
directed to forward a copy of order to the Hon'ble The Chief Justice of
India.
244
208. Regarding the incident in Court Hall No.III, complaint was
also lodged on 17.2.2009 with the Inspector of B4-High Court Police
Station by Mr.Khader Moideen, Asst. Commr of Police who was also
injured.
After obtaining written concurrence from the Registrar-
General of High Court [12th Respondent] on 18.2.2009, a case was
registered in Crime No.13/2009 under Sec.147, 451, 355, 332, 506(ii)
294(b) and 153-A IPC.
209. On 18.2.2009, Advocate Gini Leo Immanuel who was an
accused in Crime No.13/2009 on the file of B4-High Court Police
Station registered in connection with the assault on Dr. Subramaniam
Swamy on 17.2.2009 was arrested on 18.2.2009.
He was produced
before the George Town Court and remanded to judicial custody.
210. Occurrence on 19.2.2009:
Pleadings and Averments in Petitions:
On 19.2.2009 Dr. Subramaniam Swamy appeared in
connection with the same Natarajar Temple case and also in another
Court. Extensive security cover was given by the Police and personally
supervised
by
the
10th
Respondent-
Mr.Viswanathan,
Additional
Commissioner of Police, Law and Order [Addl. CoP] and JCP (North)
Mr.Ramasubramani and Dr. Subramaniam Swamy's visit passed off
peacefully.
After
departure
of
Dr.
Subramaniam
Swamy,
11th
Respondent, Joint Commissioner of Police [JCP] - Mr.Ramasubramani
245
and Deputy Commissioner of Police (DCP), Flower Bazaar [12th
respondent in W.P.No. 3910/2009] – Mr.Prem Anand Sinha and DCP,
Puliyanthope
(13th
Respondent
in
W.P.No.3910/2009)
-
Mr.Panneerselvam and Police party went to B2-Esplanade Police
Station for a debriefing and also to give instructions on the security
measures to be taken during the next hearing date
on 26.2.2009
when Dr. Subramaniam Swamy will again appear in the High Court. At
about 12.00 noon Mr.Vijayendran, advocate went to B2-Esplanade
Police Station asking for list of advocates shown as accused in Crime
No.13/2009. At about 2.00 P.M., large number of Advocates including
Advocates Tvl. Karuppan, Rajinikanth, Vijayendran, Pugazhenthi and
Jayakumar went to B4-High Court Police station located inside the High
Court campus [just near City Civil Court, Chennai] volunteering to
surrender
in
Crime
No.13/2009.
They
also
shouted
slogans
demanding registration of case against Dr. Subramaniam Swamy as
pre-condition to surrender.
211. On the instructions of DCP- Mr.Prem Anand Sinha,
Mr.Sethuraman, Inspector of Police attached to B4-High Court Police
Station, on the complaint given by Mr.Rajinikanth, Advocate registered
a case in Crime No.14/2009 u/s.3(1)(x) SC/ST [Prevention of
Atrocities Act] Act and under Sec.506(ii) IPC against Dr. Subramaniam
Swamy and Radha Mohan and furnished copy of FIR to the Advocates.
Around 2.18 – 2.30 P.M., crowd of Advocates shouted slogans
246
demanding arrest of Dr. Subramaniam Swamy. After receiving copy of
FIR, Advocates are said to have shouted slogans that Police should
immediately arrest Dr. Subramaniam Swamy and Advocates refused to
surrender.
212. Hearing those developments, on the direction from the 7th
Respondent-CoP, 10th Respondent Mr.Viswanathan-Addl. CoP [L&O],
Mr. Sandeep Rai Rathore-JCP [Central Zone] [9th Respondent in
W.P.No.3910/2009], Mr.Sarangan-DCP, Kilpauk [11th Respondent in
W.P.No.3910/2009] came to the High Court Police Station to arrest the
Advocates present there so as to maintain Law and Order.
213. At about 3.00 P.M., Addl. CoP [L&O] and JCP [Central
Zone], 2 Deputy Commissioner of Police, 9 Assistant Commissioner of
Police, 11 Inspectors, 4 Sub-Inspector of Police and 90 TSP men (in all
118) came as an additional strength. Mr.Ramasubramani, JCP (North
Zone) [11th Respondent] tried to speak to few of the lawyers for
surrender but without result.
214. On seeing the Advocates gathering, 11th Respondent – JCP
(North)-Mr.Ramasubramani instructed the police party to apprehend
the Advocates involved in 17.2.2009 incident and at 3.45 P.M. few of
them were apprehended and also those who obstructed the arrest
were made to board into the Police van for effecting arrest. Even when
247
the Advocates were arrested, the other Advocates have abused the
Police and indulged in violent activities by throwing stones on the
Policemen.
The arrested Advocates were taken to Thousand Lights
Police Station.
215. After the Advocates were arrested and taken, there were
pelting of stones by both sides. According to the Police, after warnings
and on seeing the continued violent activities, 10th Respondent -Addl.
CoP (L&O) [Mr.Viswanathan] who was the senior most officer present
in the spot consulted with other senior officers and took collective
decision to declare the assembly as 'unlawful' and to disperse it.
Further, according to the Police, even after such warnings, the unruly
mob continued their violent activities.
DCP-Mr.Prem Anand Sinha,
ordered to fire teargas shells and accordingly teargas shells were fired.
Police
ordered
lathicharge
to
disperse
the
unlawful
assembly.
Thereafter, there were continued stone pelting by both sides.
Lawyers, litigant public, Police Officers and Justice Arumuga Perumal
Adhityan who came to pacify both groups sustained injuries.
It is
alleged that at about 5.30 P.M., a mob of Advocates have set fire to
the said Police Station.
When fire
tender vehicle was brought to
douse the fire, the unruly mob of Advocates are said to have thrown
stones on the fire tender vehicle.
Since the violent activities
continued, 7th Respondent-CoP after discussing with the other senior
officers present in the spot ordered lathicharge again.
Fire was
248
extinguished. Regarding the incidents, Inspector of B2-Esplanade
Police Station gave a report to the Assistant Commissioner of High
Court Police Station and based on the report a case was registered in
Crime No.15/2009 under Sec.147, 353, 332, 450, 436 and 307 IPC
read with Sec.3(1)(x) of SC/ST [Prevention of Atrocities] Act and Sec.3
(i) TNP(PDL) Act against the lawyers.
216. Having learnt about the grave situation, the ACJ remained
in contact with the Officers, viz., Chief Secretary, Government of Tamil
Nadu, Commissioner of Police, Chennai and Home Secretary.
comprising of ACJ held the sitting at 7.40 P.M.
Bench
The First Bench
directed the 7th Respondent-CoP and 11th Respondent-JCP [North] to
file a report on the following issues:(a) " ...... under whose authority the Police entered
the High Court premises to arrest certain accused
from the High Court campus;
(b) at whose instance the order was issued for
lathicharge by the police and swift action force;
(c) who are the Police Officers/Police Personnel
responsible for the Police excess within the Court
campus;
First Bench also directed the CBI to investigate into the incidents. First
Bench also directed the State Government to file status report.
249
217. Three teams headed by Registrars were constituted to take
videographs with regard to the damages caused within the High Court
premises and also in the Court buildings.
Committee of Judges was
also constituted to report as to the damages caused in the premises.
218. Tense situation prevailed on 20th February 2009 and
subsequently.
On the administrative side, in order to
restore the
normal working condition and to safeguard the court properties and to
enable collection of materials and evidence by the Investigating agency
regarding the incidents that took place on 19th February 2009, Full
Court has taken a decision that Principal Seat of Madras High Court
and Madurai Bench of Madras High Court and all Subordinate Courts
and Tribunals under the supervision of Madras High Court situated
within the State of Tamil Nadu and Union Territory of Pondicherry to be
closed on 20.2.2009, 23.2.2009 and 24.2.2009. In view of extensive
damages caused, City Civil Court and Small Causes Court, Chennai
remained closed till 27.2.2009 and re-opened only on 02.3.2009.
219. By the order dated 26.2.2009 in W.P.No.94/2009, the
Hon'ble Supreme Court requested Mr. Justice B.N.Srikrishna,
former Judge, Supreme Court of India to inquire into the incident
which happened on 19th February 2009 and the terms of reference to
the Committee to be given by the Hon'ble ACJ of Madras High Court.
The Supreme Court inter alia issued direction to assess the damages
250
caused to the vehicles as well as Court buildings/furnitures and
directed the State Government to place a sum of Rs.25 lakhs at the
disposal of Registrar-General for the immediate relief and repair work.
220. By the order dated 18.3.2009, Full Bench of this Court
directed the State Government to initiate disciplinary proceedings
against
10th
Respondent
–
Mr.Viswanathan-Addl.
CoP
and
11th
Respondent – Mr.Ramasubramani-JCP (North) as they were the
persons who were in the helm of affairs under whose supervision the
operation was carried on and that they should be placed under
suspension. Aggrieved by the said Order, both the Officers approached
the Supreme Court in S.L.P. (Civil) No.7540/2009. By the Order dated
14.7.2009, the matter was again sent back to this Court for giving an
opportunity of being heard.
After the matter was remanded to this
Court, Mr.Viswanathan-Addl. CoP was represented by learned counsel
Mr.V.Selvaraj,
whereas
Mr.Ramasubramani-JCP
represented by Mr. P.N.Prakash.
(North)
was
CoP and other Police officers were
represented by the Senior Counsel Dr.Rajeev Dhavan. Mr.Sandeep Rai
Rathore-JCP
(Central)
was
represented
by
Senior
Counsel
Mr.I.Subramaniam.
221.
09.3.2009,
By
G.O.Ms.No.229
Public
Mr.N.Sundaradevan,
(Law
&
Order
IAS,
B)
dated
Principal
Secretary/Commissioner of Revenue Administration, Chepauk, Chennai
251
was appointed as One Man Commission to inquire into the Police action
and fix responsibility for the alleged excesses committed during Law
and Order incidents which occurred in the campus of High Court,
Madras on 19.2.2009.
222. Averments in the counter-affidavits:Public
and
Rehabilitation
Secretary
Mr.
P.Jothi
Jagarajan [2nd Respondent] who is also holding additional charge of
Secretary, Home Department [3rd Respondent] filed counter stating
that the Police personnel, if found to be responsible for excesses
committed would be suitably punished through departmental action
based on the report of One Man Committee. The Secretary had also
referred to various steps taken by the State Government to fix the
responsibility and that Rs.61 lakhs was placed at the disposal of the
Registrar-General to reimburse the medical expenses incurred by the
Advocates and to pay compensation to the damages caused to their
vehicles.
223. Terming it as a serious Law and Order problem, 7th
Respondent-CoP
averments that
lawyers.
[Mr.Radhakrishnan]
filed
counter
denying
Police had deliberately violated the human rights of
CoP averred that Police had used only minimum force to
chase away the Advocates and the Advocates relentlessly continued
their unruly activities. The situation and circumstances were such that
252
the Police had to resort to lathicharge; but for which, the life and
safety of the public and the Policemen would have been in peril. CoP
has further averred that it was the collective decision taken by the
senior officers to lathicharge to bring the situation under control.
224. The then Addl. CoP
Mr.Viswanathan [10th Respondent]
filed counter stating that CoP informed him that arrest of lawyers was
already cleared by the ACJ and obeying the orders of the CoP, the
Officers present at the High Court Police Station have arrested the
Advocates.
It is further averred that he and other Police Officers
wanted withdrawal of Police from the High Court campus and in view
of the order of CoP, they remained inside the High Court campus.
According to Mr.Viswanathan-Addl. CoP, the CoP himself reached B2Esplanade Police Station at about 4.00 P.M. and at about 4.30 P.M.,
the CoP came to the High Court Police Station with additional
reinforcement of Armed Police and only on the orders of CoP teargas
shells was fired at 4.45 P.M. and it was followed by lathicharge.
225.
In
response
to
the
counter-affidavit
filed
by
Mr.Viswanathan-Addl. CoP, 7th Respondent – CoP [Mr.Radhakrishnan]
filed reply counter-affidavit stating that there was no occasion for any
apprehension since accused Advocates themselves contacted the
concerned senior officers proposing to surrender.
7th Respondent –
CoP denied that Addl. CoP had raised concern over arresting of those
253
who wanted to surrender in connection with the incident in Court Hall
No.III on 17.2.2009 when Dr. Subramaniam Swamy was attacked.
CoP had also denied Mr.Viswanathan's averments that CoP arrived at
the High Court Police Station at 4.30 P.M. with more than 100 Armed
Police personnel and ordered teargas shells to be lobbed at 4.45 P.M.
followed by lathicharge. According to CoP ordering lathicharge was the
collective decision taken by him and other senior police officers present
to handle the grave situation.
226. Referring to the happenings on 17.2.2009 and the meeting
held by the ACJ on 18.2.2009, 11th Respondent Mr.RamasubramaniJCP
has
filed
counter
stating
that
after
safe
passing
of
Dr.
Subramaniam Swamy, the Police party assembled at B2 Police Station
for
debriefing.
At that time Advocate Mr.Vijayendran came there
asking list of Advocates shown as accused in Crime No.13/2009 of B4High Court Police Station to enable them to surrender and because of
turn of events, the Officers and men did not disperse but stayed back
in B2-Esplanade Police Station waiting for the surrender of wanted
Advocates. It is further averred that at around 2.00 P.M., Advocates
Mr.R.Karuppan and Mr.Rajinikanth and others along with number of
Advocates came to B4-High Court Police Station and those Advocates
volunteered to surrender in connection with the incident in Court Hall
No.III on 17.2.2009 and insisted for registration of case against
Dr.Subramaniam
Swamy.
On
receiving
information,
254
Mr.Ramasubramani - JCP (North) rushed to B4-High Court Police
Station. Referring to registration of case in Crime No. 14/2009 u/s.3
(1)(x) SC/ST [Prevention of Atrocities Act] Act and under Sec.506(ii)
IPC against Dr. Subramaniam Swamy and Ms.Radha Mohan, JCP
(North) has averred that Advocates involved in the occurrence on
17.2.2009 and others resisting the arrest were taken to custody and
were taken to Thousand Lights Police Station.
that the situation was so tense,
It is further averred
Mr.Prem Anand Sinha-DCP, Flower
Bazaar Police Station declared the assembly as 'unlawful' and ordered
lathicharge. It is further averred that the situation was so chaotic and
he had no occasion to keep track of the exact time of arrival of CoP.
227. Mr.Prem Anand Sinha, jurisdictional DCP [12th Respondent
in W.P.No.3910/2009] filed counter referring to the bandobust
arrangements
in
connection
with
Dr.
Subramaniam
Swamy's
appearance on 19.2.2009. It is averred that after safe passage of Dr.
Subramaniam Swamy, all of them gathered in B2-Esplanade Police
Station for debriefing. On hearing about the gathering of Advocates in
B4-High Court Police Station, Mr.Ramasubramani-JCP (North) and
jurisdictional
DCP Mr.Prem Anand Sinha and other Officers went to
B4-High Court Police Station. It is further averred that on the
insistence from Advocate Mr.R.Karuppan and other Advocates, a case
in Crime No.14/2009 was registered against Dr.Subramaniam Swamy
under Sec.3(1) (x) SC/ST (Prevention of Atrocities) Act and under
255
Sec.506(ii) IPC.
It is further averred that thereafter the Advocates
shouted slogans seeking for immediate arrest of Dr. Subramaniam
Swamy. According to Mr.Prem Anand Sinha, at about 3.00 P.M., the
Addl. CoP (L&O) and JCP (Central Zone), 2 DCPs, 9 ACs, 11
Inspectors, 4 Sub-Inspectors and 90 TSP men (in all 118) came as an
additional strength. According to Mr. Prem Anand Sinha, on the orders
of Addl. CoP (L&O), the gathering was declared as "unlawful assembly"
and after so declaring, Mr. Prem Anand Sinha ordered to fire teargas
shells.
Since, lawyers continued with stone pelting, in consultation
with the Addl. CoP and JCP (North), lathicharge was ordered. At 5.00
P.M, CoP came to the High Court premises and directed withdrawal of
Police force and return to B2-Esplanade Police Station.
It is further
averred that at 5.30 P.M., two wheelers and B4-High Court Police
Station were set on fire and there was further lathicharge.
228.
Mr.Sandeep
Rai
Rathore-JCP
(Central
Zone)
[9th
Respondent in W.P.No.3910/2009] has filed counter stating that on the
instructions of Addl. CoP (L&O), he came to the High Court premises at
3.00 – 3.15 P.M. Reiterating the averments in the counter-affidavit of
Mr.Prem Anand Sinha-DCP,
Mr.Sandeep Rai Rathore-JCP (Central
Zone) has further averred that he is not the jurisdictional officer and
not directly involved in the decision making and ordering lathicharge
and therefore, he is not responsible.
229. Mr.Sarangan-DCP [11th Respondent in W.P.No.3910/2009]
256
has filed counter-affidavit stating that he has sustained injuries on his
left shoulder, fore-arm and chest.
230. The other Officers viz., Mr.Anup Jaiswal-Addl. DGP (Int);
Mr.Sunil
Chennai);
Mr.Joshi
Kumar-Addl.
CoP
(Traffic);
Mr.Panneerselvam-DCP;
Nirmal
Kumar-DCP;
Mr.Gunaseelan-JCP
Mr.Anbu-DCP;
Mr.Thirugnanam-DCP
(South
Mr.Sridhar-DCP;
(Traffic-North)
[Respondent No.4,7,10,13 to 17 in W.P.No.3910/2009 respectively]
and Jayakodi, Inspector of Police, B2-Esplanade Police Station [3rd
Respondent in W.P.No.3703/2009] have also filed counter-affidavits
stating that to tackle the situation, it was necessary to use the
minimum force to disperse mob of advocates involved in the violent
activities. It is further averred that only on the orders of the superior
officers, they went to the High Court premises.
According to these
officers, they are not the jurisdictional officers and not responsible for
the incident.
231. CONTENTIONS OF LAWYERS
Contending that it was a pre-planned attack, Mr.S.Prabakaran,
President, Tamil Nadu Advocates Association has submitted that when
it was natural for the Advocates to assemble in the Court, there was
no justification for terming the gathering as "unlawful assembly". He
further contended that Police were chasing the Advocates and
ransacked their offices at NSC Bose Road, Thambu Chetty street and
257
other areas which would indicate that Police were venting their anger
against the Advocates.
Taking us through the individual affidavits and
pointing out the contradictions thereon, he would further submit that
in view of the discrepancy in the claims whether actual clearance was
given by the Hon'ble ACJ, it is necessary for the Bench to issue notice
to the then Hon'ble ACJ for clarifying the contradictions.
Mr.
S.Prabakaran further submitted that an 'invisible' hand directed the
operation and the same 'invisible' hand is now protecting all the
personnel involved in the violence from criminal prosecution.
He
would further submit that inspite of the injuries inflicted upon many
Advocates, vehicles damaged and Court Halls were ransacked by the
Police force, so far not even a single case has been registered against
even one constable.
232. Submitting that act of lawyers cannot be equated with any
other unruly mob, the learned counsel Ms. R.Vaigai made elaborate
submissions inter alia raising the following contentions:➢
Excess was committed by the Police personnel with
impunity
and
the
then
CoP
cannot
avoid
the
responsibility;
➢
Before accepting the alleged voluntary surrender,
Police must have foreseen the consequences of
deployment of force on 19.2.2009;
➢
Police impelled by animosity against the lawyers
258
mercilessly
ransacked
beaten
the
them
Court
and
rampaging
premises
which
Police
disrupted
functioning of the Court which would amount to
criminal contempt of court;
➢
In so far as initial reaction of lawyers, on seeing that
their fellow lawyers being taken to custody, it was
natural reaction on the part of the lawyers to
protest. Gathering and any other natural reaction of
lawyers cannot be termed as 'unlawful assembly'
warranting
deployment
of
more
personnel
and
lathicharge.;
➢
Procedure of Police Standing Order 703 to disperse
the crowds was not followed;
➢
Contrary to the stand of CoP, he was well present in
the campus even around 4.30 P.M., the then CoP is
to be squarely held responsible.
233. Ms. Vaigai further submitted that for deployment of Police
force prior permission of Registrar-General ought to have been
obtained and that the precincts of High Court is a protected area and
that permission ought to have been obtained before arresting the
lawyers. In support of her contention, Ms. Vaigai placed reliance upon
(1980) 2 SCC 559 [Niranjan Singh and another v. Prabhakar
Rajaram Kharote and others]; 1983 Crl LJ 1866 [State of UP v.
259
Deg Raj Singh and others]; (1987) 3 SCC 434 [State of UP v.
Niyamat and others]; (1994) 6 SCC 442 [Mohd. Aslam @ Bhure
Acchan Rizvi v. UoI and others]; (1995) 3 SCC 757 [Dhananjay
Sharma v. State of Haryana and others]; 1995 Supp (3) SCC
736 [Secretary, Hailakandi Bar Association v. State of Assam
and another]; (1996) 4 SCC 742 [Punjab & Haryana High Court
Bar Association v. State of Punjab and others]; (1997) 1 SCC
416
[D.K.Basu
v.
State
of
WB];
AIR
2000
Delhi
266
[Dr.B.L.Wadehra v. State (NCT of Delhi) and others]; (2000) 2
SCC 465 [Chairman, Railway Board and others v. Chandrima
Das and others]; (2004) 5 SCC 26 [Daroga Singh and others v.
B.K.Pandey]; 2004 (5) CTC 612 [Devan, formerly the Inspector
of Police, Needamangalam Police Station, Needamangalam,
Tiruvarur District] and (1996) 6 SCC 323 [Commissioner of
Police, Delhi and another v. Registrar, Delhi High Court, New
Delhi].
234. In her reply submissions, learned counsel Ms. Vaigai placed
reliance
upon
B.Padmanabha
1992
Cri
Beliya
LJ
and
634
[State
others];
AIR
of
Karnataka
1956
Raj
v.
179
[Rajasthan Bar Council v. Nathuram and another]; AIR 1966 SC
740 [Ram Manohar Lohia v. State of Bihar]; 1970 (3) SCC 746
[Madhu Limaye v. Sub Divisional Magistrate, Monghyr]; 1984
(3) SCC 14 [Vijay Narain Singh v. State of Bihar]; 2003 (7) SCC
260
749 [Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble
and another]; 2005 (10) SCC 97 [Union of India and another v.
Chaya Ghoshal and another]; 2007 (2) MLJ 1 [Madras High
Court Advocate Association v. State of Tamil Nadu]; 2007 (4)
SCC 474 [Destruction of Public and Private Properties, In Re:];
2007 (4) CHN 842 [Association for Protection of Democratic
Rights v. State of West Bengal and others]; 2008 (4) MLJ 763
[Coimbatore Bar Association v. State of Tamil Nadu]; 2008 (5)
SCC 89 [Pulin Das @ Panna Koch v. State of Assam]; 2009 Cri LJ
854 [Chairman, Bar Council of TN v. State of Tamil Nadu and
others] and 1898 ILR MDS (21) 249 [Queen Empress v. Subba
Naik].
235. Contending that Respondents have not answered the
question raised by the Court under what authority Police entered the
premises, Mr. R.C.Paul Kanagaraj, President, Madras High Court
Advocates Association [MHAA] has submitted that when lawyers were
forcibly taken to the custody, the other lawyers gathered to rescue the
lawyers and such reaction and gathering of lawyers cannot be termed
as 'unlawful assembly'. He would further submit that all the rules of
Police Standing Orders to disperse the crowds was given a go bye and
without following the procedure, lathicharge was ordered.
Mr.
R.C.Paul Kanagaraj would further contend that dispersal of gathering
of lawyers by use of force was with a deliberation and violation of
261
Sec.129 Cr.P.C. and the Police Standing Orders.
He would further
submit that the higher Police officials and also Police personnel are to
be proceeded with for contempt of court for disrupting the Court
activities and closure of High Court and other Courts in the premises
for three days and six days respectively.
236. Senior Counsel Mr. R.Krishnamurthy, President Madras
Bar Association for themselves and onbehalf of Women Lawyers'
Association submitted that Police officers who ordered lathicharge
should be identified and action should be taken against them and other
higher officers should be collectively held responsible.
attention
to
the
inconsistencies
in
the
Drawing our
counter-affidavits,
Mr.
R.Krishnamurthy, learned Senior Counsel would submit that the
counter-affidavits are contradictory to each other and the responsible
Police officers ought to have come to the Court with clear averments.
Questioning
the
propriety
of
Mr.
N.Sundaradeven
One
Man
Committee, learned Senior Counsel would further submit that Mr.
N.Sundaradeven One Man Committee cannot be expected to be fair
and that it would not reflect the correct statement and the One Man
Committee might not deliberate upon the misdeeds of higher officials.
In support of his contention learned Senior Counsel placed reliance
upon 1980 (2) SCC 559 [Niranjan Singh and another v.
Prabhakar Rajaram Kharote and others].
262
237. Mr. T.V.Ramanujam, learned Senior Counsel
submitted
that the Police attack on the lawyers was an onslaught upon the
Institution and deterrent orders has to be passed against them.
238. Mr. N.G.R.Prasad, learned counsel has submitted that
lawyers agitation on the Sri Lankan Tamils issue was causing
embarrassment to the Government and, the attack on lawyers was not
a 'Mere police excess' but was a 'State excess' violating human rights.
239. Mr. V.Raghavachari, learned counsel has submitted that
law enforcing agencies have no right to arrest the lawyers within the
High Court premises. He would further submit that Advocates are the
Officers of the Court and any attack on the Advocates would amount to
interference with the administration of justice.
In support of his
contention, Mr. V.Raghavachari placed reliance upon AIR 1954 Mad
249 [Public Prosecutor v. K.G.Sivaswamy and another]; 2007
(4) CHN 842 [Association for Protection of Democratic Rights v.
State of WB and others]; 1996 Crl.LJ 1956 [In Re: Rajendran
and others]; ILR (1992) 1 Delhi 498 [P.V.Kapoor and another v.
UoI and another]; AIR 1999 Gujarat 316 [State of Gujarat v.
Govindbhai Jakhubai and another]; AIR 2002 Jharkhand 47
[M/s.Gray Hound Transport Co., v. UoI and others]; AIR 1970
SC
2015
[E.M.Sankaran
Namboodripad
v.
T.Narayanan
Nambiar]; 1992(240 DRJ 221A [State v. J.P.Singh]; AIR 2002
263
SC 1375 [In Re: Arundhati Roy]; AIR 1964 Calcutta 572 [The
State v. Debabrata Bandopadhyay, District Magistrate, Nadia
and another]; 2001 SCC (Cri) 1048 [T.T.Antony v. State of
Kerala and others]; AIR 2000 Delhi 266 [B.L.Wadehra v. State
(NCT of Delhi) and others]; 2009 Crl.LJ 1677 [Court on its own
motion v. State and others]; (1994) 4 SCC 260 [Joginder Kumar
v. State of UP and others]; Queen Bench Division Vol.I (1875)
75 [Smith v. Cook]; 1970 Court of Appeal 114 [Morris and
others v. Crown Office]; 1994 (6) SCC 205 [N.Nagendra Rao
and Co., v. The State of Andhra Pradesh]; (2007) Queens Bench
399 [Regina (W) v. Commissioner of Police of the Metropolis
and another] and MANU/DE/ 1477/ 2008 [Police Commissioner
and others v. Yash Pal Sharma].
240. We have also heard Mr. R.Karuppan who filed affidavit
and
also
made
submissions
regarding
voluntary
surrender
of
Advocates in connection with Crime No.13/2009 of B4-High Court
Police Station under Sec.147, 451, 355, 332, 506(ii) 294(b) and 153-A
IPC on the file of B4-High Court Police Station.
241. Onbehalf of the State expressing regret over the situation,
Mr. P.S.Raman, learned Advocate-General has submitted that
Government of Tamil Nadu has the highest regard to the Institution
and that any Police Officer found guilty in the incident by One Man
264
Commission would be strictly dealt with.
The learned Advocate
General submitted that if the Court finds anyone responsible for the
incident on 19.2.2009, the State will take appropriate action against
the concerned officers.
through the then
Learned Advocate-General has taken us
existing security arrangements to the High Court.
Learned Advocate-General has also enumerated the steps taken by the
State Government and that pursuant to the orders of the Supreme
Court, State Government has appointed One Man Committee. Learned
Advocate-General has also submitted that Rs.61 lakhs was sanctioned
by the Government and placed at the disposal of the Registrar-General
for payment of compensation to the injured Advocates and for the
damages caused to the vehicles and the Court buildings for repair.
Elaborating upon various steps taken in protecting the Heritage
building, learned Advocate-General interalia appealed to us to use this
opportunity to build a "bridge" between the Bar and Police.
242.
Taking
us
through
the
affidavits
and
contradicting
averments in the common counter-affidavit, Mr.V.Selvaraj, learned
counsel for Mr.Viswanathan, Addl CoP [10th Respondent] submitted
that so far as Metropolitan cities are concerned, CoP is incharge of the
same
and
only
at the
instance
of
CoP,
Mr.Viswanathan
[10th
Respondent] came to the High Court campus. Taking us through the
call log of the cellphones, learned counsel would further submit that
CoP himself came to the riot area at about 4.45 P.M. with additional
265
re-enforcement of Police, CoP cannot avoid responsibility by throwing
blame upon other persons.
Arguing onbehalf of Addl CoP, learned
counsel further submitted that only between 3.50 – 4.30 P.M., Addl
CoP was incharge and during which time, he did not declare any
'unlawful assembly' and while so, it was highly improper for the CoP to
file report before the Court fixing the responsibility upon Addl CoP.
243. Onbehalf of JCP (North) Mr.M.Ramasubramani, expressing
sincere
apology
over
unsavoury
incident
on
19.2.2009,
Mr.P.N.Prakash, learned counsel submitted that as jurisdictional JCP,
he was present both in the morning and in the afternoon on
19.2.2009.
It was submitted that because of the incident on
17.2.2009, there was a need for mobilising the Police force and the
situation was volatile which necessitated mobilisation of force in the
morning.
244. It was further argued that Dr.Subramaniam Swamy who is
in 'Z' category has to appear the Court on 19.2.2009 and having
regard to the happenings on 17.2.2009, Mr.Ramasubramani had taken
bonafide decision in good faith to move the Police force which gathered
in B2-Esplanade Police Station for debriefing.
1995 (II) LW Crl 723
Placing reliance upon
(Rajendran & 23 others/contemnors/
Respondents/Police officers/ Advocates if Saidapet
Bar) and that in
view of the source of power under Sec.41 Cr.P.C., there was no bar for
266
the Police to arrest the Advocates in the Court campus.
Taking us
through the Typed set of papers, learned counsel would submit that
there is no consistent version regarding the time and therefore, the
time stated in the order dated 19.2.2009 cannot be taken as
conclusive.
245. Appearing onbehalf of Mr.Sandeep Rai Rathore, JCP
(Central
[9th
Zone)
Respondent
in
W.P.No.3910/2009],
Mr.P.N.Swaminathan, learned counsel submitted that on the direction
from the Addl. CoP [Mr.Viswanathan], Mr.Sandeep Rai Rathore, JCP
(Central Zone) arrived in High Court at 3.00 – 3.15 P.M. and reported
before the JCP (North).
Learned counsel would further submit that
Mr.Sandeep Rai Rathore was not a jurisdictional officer and no specific
command was assigned to him and therefore, he cannot be held
responsible for the incident on 19.2.2009.
Learned counsel would
further submit that Mr.Sandeep Rai Rathore was not part of decision
making
ordering
lathicharge.
Without prejudice
to
the above
contentions, onbehalf of Mr.Sandeep Rai Rathore, an unconditional
apology was also expressed for the incident on 19.2.2009.
246.
Drawing
our
attention
to
long
list
of
incidents
of
misbehaviour by the Advocates and number of Criminal cases
registered against the Advocates, Dr.Rajeev Dhavan, learned Senior
Counsel submitted that there was a serious threat perception which
justified mobilisation of Police force.
Learned Senior Counsel would
267
further submit that the attack on Dr.Subramaniam Swamy on
17.2.2009
contributed
to
the
threat
perception
and
therefore,
mobilisation of Police force was only a precautionary measure.
Learned Senior Counsel made persuasive submissions interalia raising
the following contentions:(i)Whether presence of Police on the Court premises was
uninvited and what was the level of threat perception;
(ii)Difficult
and
complicated
questions
of
facts
are
involved; reliability and acceptability of evidence and
materials available cannot be gone into exercising
jurisdiction under Article 226 of the Constitution of
India;
(iii)Because of continuous boycott of Advocates and their
defiant acts in the past, there was serious threat
perception which necessitated use of reasonable force;
Court cannot comprehend what would have been the
anticipated threat;
(iv)Since Police officers are Civil Servants entitled to
protection under Article 311 of Constitution, Court
straightaway
cannot
order
suspension/impose
punishment without due process of law by initiation of
disciplinary proceedings; rights available to the Officers
for acting bonafide;
(v)Absolutely, there was no malafide intention or pre-
268
planned attack to invoke contempt jurisdiction; and
(vi)Moulding relief – balance to be adopted and how the
reliefs could be moulded, keeping in view of interest of
both lawyers and Police.
247. Pitched battle of lawyers with Police in the Court premises
on 19.2.2009 was the most unfortunate incident; a situation which
should never happen in future anywhere. Lawyers and the Police are
two wings of the law-enforcement machinery. They complement each
other in the task of maintaining law and order.
It is deplorable that
their relationship has been strained to the extent of indulging in a
pitched battle.
The relationship between the lawyers and the police
has never been particularly good. What happened in the High Court
was the culmination of such long-standing differences.
The gross
impropriety committed by the police on the Court premises resulted
indiscriminate attack on everyone – lawyers, litigants, staff and one
High Court Judge.
248. An unbiased examination of facts would reveal that culture
of boycott of Courts by the lawyers developed in the State in the
recent past and provocation of handful of lawyers on 17.2.2009 and
19.2.2009 led to this unprecedented incident. Though, we are mainly
concerned with the developments during and aftermath of 19.2.2009,
at the outset, it is apposite to highlight the high standards fixed for the
269
lawyers and decadence of values in the legal profession.
249. Legal profession – Necessity for maintaining high
level of morality and standards:Because of the good work and services rendered by the
professionals, they are accorded status and autonomy in the society.
It is relevant to quote the following passage from the book Howard
Gardner's Five Minds for the Future – Chapter 6 – The Ethical
Mind – Page 128 [Published by Harvard Business School Press,
Boston, Massachusetts]:
"We conceptualize a profession as a highly trained
group of workers who perform an important service
for society.
In return for serving in an impartial
manner and exercising prudent judgment under
complex circumstances, professionals are accorded
status and autonomy."
"Work may be good in the sense of being excellent
in quality – in our terms, it is highly disciplined.
Such work may be good in the sense of being
responsible – it regularly takes into account its
implications for the wider community within which it
is situated.
sense
of
And such work may be good in the
feeling
good
–
it
is
engaging
and
meaningful, and provides sustenance even under
challenging conditions. ....."
250. In AIR 1993 SC 1535 : 1993 (2) SCC 562 [J.S.Jadhav
270
v. Mustafa Haji Mohamed Yusuf], the Supreme Court observed that
the legal profession is regarded to be a noble one.
In the inaugural
address at the Bar Council of India Seminar, Justice Sundara Aiyar,
former Judge, Madras High Court
spoke that the profession of an
advocate has always been regarded as one of the noblest profession.
[See
AIR
1961
(15th
April)
Journal
Section].
There
is
no
profession/class which has done more to develop and defend the
human rights.
251. It will be apposite to quote a passage from a celebrated
decision of the Supreme Court in Sanjiv Datta's case (1995) 3 SCC
619 -
"The legal profession is a solemn and serious occupation.
It is
a noble calling and all those who belong to are its honourable
members. Although entry to the profession can be had by acquiring
merely the qualification of technical competence, honour as a conduct
both in and outside the court."
252. The legal profession is most honourable profession, with
high traditions and with the potentialities for great good in the
progress of orderely society and maintenance of law and order.
Lawyers have been in the vanguard of a country's progress and have
always zealously guarded human liberties and the rule of law. For an
ambitious young man of keen intellect and capacity to work hard, the
legal profession holds unlimited prizes. It gives him an insight into the
271
character of his fellow-men, into all their weaknesses and all their
strength, and an opportunity to do real good by helping in the proper
administration of justice and maintenance of judicial standards.
253. The profession of the advocate is a permanent institution in
the world's justice, coming down through the ages, and garnering
traditions and wisdom from generation to generation for the edification
of present and future ones. Client and counsellor, advocate, jury, and
judge - their ways and their needs and their notions were known and
studied in Athens, Rome, England and America. The world's business
and its laws may change, but human nature's motives and foibles have
formed a constant element. The psychology of a law suit is still the
great problem for the lawyer; and Quintilian, Scarlett and Choate here
come together on common ground [Passage quoted from Page
No.6 of P.Ramanatha Aiyer's – Legal and Professional Ethics –
Third Edition, 2003].
254. There is a nobility of purpose involved in the profession of
the law. There is a chivalry of action. It may be called into play any
day. It involves the idea that a man can stand forward and become
the advocate of some person who cannot speak for himself, who will
have the courage and boldness to defend liberty from an assault upon
her citizens, who will have the strength of character to denounce a
wrong and who after all will remember that while he owes a great duty
272
to his profession, he is called upon to give a corresponding duty to his
country [Passage quoted from Page No.12 of P.Ramanatha
Aiyer's – Legal and Professional Ethics – Third Edition, 2003].
255. The American Tycoon Mr. IACOCCA who achieved fame as
one of America's leading Captain of industry was asked to address a
group of prominent lawyers. He said to his captive audience:
"As lawyers you are little more equal than the rest
of us.
You are trained to use the freedoms
granted by the Constitution. We all have them, of
course, but you know better than the rest of us
how to use them. That is your job. Advocacy is
your profession.
And it is an hon'ble one.
The
Constitution might tell us that our rights are
sacred, but some times they are not worth a dime
unless people like you, skilled in the law, are able
to push them and protect them for us".
"In our
democracy, the final judges will always be laymen
like me, and all the millions like me, who do not
read the Constitution regularly and who may not
even understand everything it says.
We are the
judges of the effectiveness of the Constitution and
the wisdom of the laws written under it and the
integrity of the legal profession. There is a lawyer
in the United States called Roger Bridges who is
engaged
in
unearthing
legal
cases
in
which
Abraham Lincoln appeared and argued – this
ambitious research project undertaken by Bridges
and his team is called the 'Lincoln Legals'.
They
273
came across Abraham Lincoln's notes for a law
lecture in 1850. In it he said:
"Resolve to be honest at all events;
and if in your judgment you cannot be
an
honest
honest
lawyer,
without
resolve
being
a
to
be
lawyer.
Choose some other occupation rather
than one in the chosing of which you
do, in advance, consent to be a
knave." "
[Passage quoted from Gururaja Chari's Advocacy and Professional
Ethics – Page No.644 of first Edition, Wadwa and Company].
256. As held by the Supreme Court in 1994 (2) LW 187 :
(1994) 2 SCC 204 (State of U.P. and others v. U.P. State Law
Officers Association and others), legal profession is essentially a
service oriented profession. Lawyers should remember, that service is
the keynote of profession and should not consider it as a mere means
of livelihood.
They have great responsibility to protect and promote
the democratic institutions in the country by striving to uphold rule of
law.
257. Lawyer an Officer of Court – Duties and
responsibilities:The United States has somewhat dubious distinction of having
world's largest population of lawyers.
India comes second in having
world's largest population of lawyers.
No free nation can ignore or
274
forget the judiciary as part of democracy.
258. Indian society is multifaceted, multi-racial, multi-religious,
and multi-lingual. The greatness, glory and distinction of this Country
lies in unity in diversity.
The very fact that we are surviving as a
democratic country having a Rule of Law and an independent judiciary
itself is significant.
sacred.
The constitution might tell that our rights are
But sometimes they are not worth a dime unless lawyers
skilled in the law are able to push them and protect them for the
citizen.
259. No free nation can ignore or forget the importance of Law
of Judiciary.
If the Rule of Law has been a success and is even
progressing in this country, the lawyers and judges are to be credited
for their contribution to what is Rule of Law.
260. The profession of law is a public institution and lawyer
discharges his public duty in so far as he assists in the administration
of justice. The preamble of the chapter on Standards of professional
conduct and Etiquette prescribed by the Bar Council of India reads as
follows:
"An advocate shall, at all times, comport himself
in a manner befitting his status as an officer of
the
Court,
a
privileged
member
of
the
community, and a gentleman, bearing in mind
275
that what may be lawful and moral for a person
who is not a member of the Bar, or for a member
of the Bar in his non-professional capacity may
still be improper for an advocate."
261. It takes great intellectual gifts to make a great advocate.
No man wins a height at a bar, without a struggle and without
intellectual power.
Here no deception is possible, as in other cases.
Not like the clergyman with his ex parte case behind the pulpit; not
like the physician with his prescription in the dark; the lawyer's work is
done in the broad light of open day, confronted at every step by able
opposition and argument, with the entire public looking on. To meet
such a test requires the greatest and keenest powers.
The vulgar
notion of advocacy that sees nothing in it higher than an effort to
'before the jury' is a great mistake. Rather it is often the business of
the true advocate to clear and dispel by the electric heat and lightning
of his genius, the fog-bank that has already settled there [See from
60 Mich. Reports, Page 1, Eulogy on Hon. Chas Stuart, a great
Advocate; May on Advocates cited in Donovan's skill in Trials,
Page 145].
262. Genius indeed will leave its mark in whatever sphere it may
move.
But learning, industry and integrity or essential traits in the
profession.
Fidelity to the Court, fidelity to the client, fidelity to the
claims of truth and honour: these are the matters comprised in the
276
oath of office of a lawyer.
263. There are pitfalls and mantraps at every step, and the
mere youth at the very outset of his career, needs often the prudence
and self-denial, as well as the moral courage, which belong commonly
to riper years.
High moral principle is his only safe guide; the only
torch to light his way amidst darkness and obstruction. [Passage
quoted from Page No.12 of P.Ramanatha Aiyer's – Legal and
Professional Ethics – Third Edition, 2003].
264. In (1995) 1 SCC 732 [Indian Council of Legal Aid and
Advice v. Bar Council of India], Para (3) the Supreme Court held
as follows:"3. ....... It is generally believed that members of
the
legal
profession
have
certain
social
obligations. e.g. to render "pro bono publico"
service to the poor and the underprivileged.
Since the duty of a lawyer is to assist the Court in
the administration of justice, the practice of law
has a public utility flavour and, therefore, he
must strictly and scrupulously abide by the Code
of Conduct behoving the noble profession and
must not indulge in any activity which may tend
to lower the image of the profession in society.
That is why the functions of the Bar Council
include
the
professional
laying
conduct
down
and
of
standards
etiquette
of
which
277
advocates must follow to maintain the dignity and
purity of the profession."
265. Observing that the legal profession is a solemn and serious
occupation, in (1995) 3 SCC 619 : 1995 AIR SCW 2203 [In Re:
Sanjeev Datta], Para (20), the Supreme Court has stated as follows:-
"20. The legal profession is a solemn and serious
occupation. It is a noble calling and all those who
belong
to
it
are
its
honourable
members.
Although the entry to the profession can be had
by acquiring merely the qualification of technical
competence, the honour as a professional has to
be maintained by its members by their exemplary
conduct both in and outside the Court. The legal
profession is different from other professions in
that what the lawyers do, affects not only an
individual but the administration of justice which
is the foundation of the civilised society. Both as
a leading member of the intelligentsia of the
society and as a responsible citizen, the lawyer
has to conduct himself as a model for others both
in his professional and in his private and public
life. The society has a right to expect of him such
ideal behaviour. It must not be forgotten that the
legal profession has always been held in high
esteem and its members have played an enviable
role in public life.
The regard for the legal and
judicial systems in this country is in no small
measure due to the tireless role played by the
278
stalwarts in the profession to strengthen them.
They took their profession seriously and practised
it with dignity, deference and devotion.
If the
profession is to survive, the judicial system has to
be vitalised.
No service will be too small in
making
system
the
efficient,
effective
and
credible."
266. On the Conduct of Lawyers:
As held by the Hon'ble Supreme Court in Ramon Services
(P) Ltd. v. Subhash Kapoor (2001 1 SCC 118), persons belonging
to the legal profession are concededly the elite of the society. The
lawyers, who have been acknowledged as being sober, task-oriented,
professionally-responsible stratum of the population, are further
obliged to utilise their skills for socio-political modernisation of the
country.
The
lawyers
are
a
force
for
the
preservance
and
strengthening of constitutional government as they are guardians of
the modern legal system.
267. As soon as a lawyer is enrolled as an advocate, he is
subject to:a) the professional code of advocates;
and
b) disciplinary proceedings for misconduct.
268. Section 35(1) of the Advocates Act reads as follows:
279
"35. Punishment of advocates for misconduct:(1) Where on receipt of a complaint or otherwise
a State Bar Council has reason to believe that any
advocate on its roll has been guilty of professional
or other misconduct, it shall refer the case for
disposal to its disciplinary committee".
It will be seen that the emphasis is on both the professional and other
misconduct.
269. Likewise, the Bar Council of India Rules has laid down
'Rules governing Advocates, in part IV of the said Rules. In particular,
Chapter II of that part lays down
"Standard
of
Professional
Conduct
and
Etiquette"
The preamble of these Standards states:
"An Advocate shall, at all times, comport himself
in a manner befitting his status as an officer of
the court, a privileged member in the community;
and a gentleman, bearing in mind that what may
be lawful and a moral for a person who is not a
member of the Bar, or for a member of the Bar in
his
non-professional
capacity
may
still
be
improper for an advocate. Without prejudice to
the generality of the foregoing obligation, an
advocate shall fearlessly uphold the interests of
his client, and in his conduct conform to the rules
hereinafter mentioned both in letter and in spirit.
The rules hereinafter mentioned contain canons
of conduct and etiquette adopted as general
280
guides; yet the specific mention thereof shall not
be construed as a denial of the existence of other
equally
imperative
though
not
specifically
mentioned."
270. Dilution of Professional Standards:The moral decadence that has crept into society has not
spared the advocates.
It is important to underscore that being
recognised as a member of a profession is not the same acting like a
professional.
Some lawyers fail to honour the central precepts and
strictures of their of calling and nobility of profession.
It must be
remembered that advocate pursues the profession not only for his
personal enrichment but primarily to help the court in adjudicating a
dispute according to law. (Emphasis supplied)
The law should not be
stultified by sanctifying little omissions as fatal flaws.
Some of the
defects may be attributed to the lack of inservice training. We only
wish that in future Leadership in Bar would endeavour to impart
inservice training to new entrants.
271. The ever-growing numerical strength of the advocates and
the ever-shrinking litigation scope have certainly had their impact.
Mediocrity, indifference and incompetence on the part of the members
of the profession can seriously vitiate the cause of justice and
undermine public confidence in the system.
281
272. Dilution of professional standards and the consequent
weakening
of the administration of justice have reached disturbing
proportions. Professional competence has been eroded to an alarming
extent. A lack of professional discipline and poor standard of ethical
conduct pervade the system. The effect is felt in the system and on its
credibility among the people.
273. An increasing number of entrants are ill-equipped, poorly
trained with little sense of social accountability.
Considerations of
professional competence have been jettisoned to an alarming extent,
leading society to question the very ability of the profession to correct
the distortions and to serve public interest. Ignorance of common man
and depravity in the system have led to the unfair and indifferent
delivery of legal service.
274. Expressing deep concern over the falling standards in the
legal profession, Professor (Dr.) N.R.Madhava Menon,
has
emphasised need for meaningful reforms in the legal profession.
We
quote "With
unprecedented
changes
induced
by
technology and globalisation, all professions are
forced to re-think their methods of management
and delivery of services. Accountability systems
are
being
participatory
made
with
more
the
transparent
object
of
and
controlling
282
commercialisation and improving the quality of
services. Even the code of ethics and methods of
disciplining erring members are being reworked
across professions. It is in this context that the
Indian legal profession is to be looked at for
seeking reforms."
[Article
by
Professor
(Dr.)
N.R.Madhava
Menon, former Director of National Law School,
National University of Juridical Sciences and
National Judicial Academy - Reforming the legal
profession:some
ideas
–
Hindu
dated
20th
February 2008 -].
275.
In
his
popular
work
"The
World
is
Flat"
Thomasfriedman has detailed on how the progress of globalisation
has resulted in a 'flat playing field'. In the era of globalisation foreign
law firms are making endeavours to make entry in India. Despite the
resistance to their entry, we understand foreign law firms have tie-ups
and associate offices in India with whom they continue to work. When
everywhere
there
is
competence
and
thriving
to
excel
in
professionalism, lawyers cannot afford to lag behind.
276. Lawyers should not forget that they have glorious
traditions left behind them while the previous generations they have to
maintain those traditions of love and service to the society. Advocates
must have exemplary traits of sincerity of purpose. Re-appraisal of
professional obligations, decency and decorum should be placed
283
high on the agenda to check the debasement of advocacy.
Bar
Associations/Council's need to adopt strategies to improve the image
of the profession.
As a whole, lawyers need to elaborate Codes of
Ethics even for their fundamental values remain the same.
Lawyers
need to take steps to raise their collective consciousness against
unethical practices or violation of professional responsibility.
277. Boycott of Courts by Lawyers:It must be remembered that Advocate is an Officer of the
Court.
Lawyers have obligation and duties to ensure smooth
functioning of the Court.
They owe a duty towards their clients and
Court and society at large. Strikes interfere with the administration of
justice.
278. In Ex. Capt. Harish Uppal's case, Supreme Court held
that by very nature of their calling to assist in the dispensation of
justice, lawyers should not resort to strike. Observing that Advocates
owe a duty towards clients, in AIR 2001 SC 207 [Ramon Services
Pvt. Ltd. v. Subhash Kapoor and others] in Para (5), the Supreme
Court held as follows:"5. ... When the advocate who was engaged by a
party was on strike there is no obligation on the
part of the Court either to wait or to adjourn the
case on that account. Time and again this Court
has said that an advocate has no right to stall the
284
Court proceedings on the ground that advocates
have decided to strike or to boycott the Courts or
even
boycott
U.P.Sales
any
Tax
particular
Service
Court.
Association
Vide
v.
Taxation Bar Association, Agra (1995) 5 SCC
716: (1995 AIR SCW 3759 : AIR 1996 SC
98 : 1995 All LJ 2052), K.John Koshy v. Dr.
Tarakeshwar Prasad Shaw (1998) 8 SCC
624; Mahabir Prasad Singh v. Jacks Aviation
(1999) 1 SCC 37 : (1998 AIR SCW 3806 :
AIR 1999 SC 287); and Kolittumottil Razak
v. State of Kerala (2000) 4 SCC 465.
279. While it is true that lawyers have contributed largely in the
fields of human rights, environmental law, socio-economic rights, there
are very few professions that have been criticised as legal profession.
Of late, boycotting of Courts has become order of the day. Advocates
strike and boycott the Courts at the slightest provocation overlooking
the harm caused to the judicial system in general and the litigant
public in particular and to themselves in the estimate of the general
public.
280. Observing that striking lawyers failed in their contractual
and professional duty and conduct, in AIR 2001 SC 207 [Ramon
Services Pvt. Ltd., v. Subhash Kapoor and others], Para (26) the
Supreme Court held as under:"26. Noting casual and indifferent attitude of
some of the lawyers and expecting improvement
285
in quality of service this Court in In Re : Sanjiv
Datta,
Deputy
Secretary,
Ministry
of
Information and Broadcasting, New Delhi
(1995) 3 SCC 619 : (1995 AIR SCW 2203 :
1995 Cri LJ 2910) held
(para 12 of AIR SCW
and Cri LJ):
"Of late, we have been coming across several
instances
which
can
only
be
described
as
unfortunate both for the legal profession and the
administration of justice. It becomes, therefore,
our duty to bring it to the notice of the members
of the profession that it is in their hands to
improve the quality of the service they render
both to the litigant-public and to the Courts, and
to brighten their image in the society.
Some
members of the profession have been adopting
perceptibly casual approach to the practice of the
profession as is evident from their absence when
the
matters
are
called
out,
the
filing
of
incomplete and inaccurate pleadings – many time
even illegible and without personal check and
verification, the non-payment of Court-fees and
process
fees,
the
failure
to
remove
office
objections, the failure to take steps to serve the
parties, et al. They do not realise the seriousness
of these acts and omissions.
They not only
amount to the contempt of the Court but do
positive disservice to the litigants and create
embarrassing situation in the Court leading to
avoidable
unpleasantness
and
delay
in
the
disposal of matters. This augurs ill for the health
of our judicial system.
286
The legal profession is a solemn and serious
occupation. It is a noble calling and all those who
belong
to
it
are
its
honourable
members.
Although the entry to the profession can be had
by acquiring merely the qualification of technical
competence, the honour as a professional has to
be maintained by its members by their exemplary
conduct both in and outside the Court. The legal
profession is different from other professions in
that what the lawyers do, affects not only an
individual but the administration of justice which
is the foundation of the civilised society. Both as
a leading member of the intelligentsia of the
society and as a responsible citizen, the lawyer
has to conduct himself as a model for others both
in his professional and in his private and public
life. The society has a right to expect of him such
ideal behaviour.
It must not be forgotten that
the legal profession has always been held in high
esteem and its members have played an enviable
role in public life.
The regard for the legal and
judicial systems in this country is in no small
measure due to the tireless role played by the
stalwarts in the profession to strengthen them.
They took their profession seriously and practised
it with dignity, deference and devotion.
If the
profession is to survive, the judicial system has to
be vitalised.
No service will be too small in
making
system
credible.
the
efficient,
effective
and
The casualness and indifference with
which some members practise the profession are
certainly not calculated to achieve that purpose
287
or
to
enhance
the
prestige
either
of
the
profession or of the institution they are serving.
If people lose confidence in the profession on
account of the deviant ways of some of its
members, it is not only the profession which will
suffer but also the administration of justice as a
whole. The present trend unless checked is likely
to lead to a stage when the system will be found
wrecked from within before it is wrecked from
outside. It is for the members of the profession
to introspect and take the corrective steps in time
and also spare the Courts the unpleasant duty.
We say no more."
In Brahma Prakash Sharma v. State of
U.P., 1953 SCR 1169 : (AIR 1954 SC 10 :
1954 Cri LJ 238) a Constitution Bench of this
Court held that a resolution passed by the Bar
Association expressing want of confidence in the
judicial officers amounted to scandalising the
Court to undermine its authority which amounted
to contempt of Court. In Tarini Mohan Barari,
Re : AIR 1923 Cal 212 the Full Bench of the
High
Court
held
that
pleaders
deliberately
abstaining from attending the Court and taking
part in a concerted movement to boycott the
Court, was a course of conduct held not justified.
The pleaders had duties and obligations to their
clients in respect of matters entrusted to them
which were pending in the Courts. They had duty
and obligation to co-operate with the Court in the
orderly administration of justice. Boycotting the
Court was held to be high-handed and unjustified.
288
In Pleader, Re : AIR 1924 Rangoon 320 a Division
Bench of the High Court held that a pleader
abstaining from appearing in the Court without
obtaining his client's consent and leaving him
undefended,
conduct.
amounted
In
Association
v.
U.P.
to
Sales
Taxation
unprofessional
Tax
Bar
Service
Association,
Agra (1995) 5 SCC 716 : (1995 AIR SCW
3759 : AIR1996 SC 98 : 1995 All LJ 2052)
this Court observed (paras 15 and 16 of AIR
SCW, AIR and All LJ):
"It has been a frequent notice in the recent past
to witness that advocates strike work and boycott
the
Courts
at
the
slightest
provocation
overlooking the harm caused to the judicial
system in general and the litigant public in
particular and to themselves in the estimate of
the general public.
An advocate is an officer of
the Court and enjoys a special status in the
society. The workers in furtherance of collective
bargaining organise strike as per the provisions of
the Industrial Disputes Act as a last resort to
compel
the
management
to
concede
their
legitimate demands. ......."
281. Question of lawyers going on strike has been the subject in
number of decisions of the Supreme Court.
have been referred to in the decision of the
Most of those decisions
Constitution Bench of
Supreme Court in AIR 2003 SC 739 [Ex. Capt. Harish Uppal v.
Union of India and another] in Paras (27) to (31), it has been held
289
as follows:"27. In the case of B.L.Wadehra v. State (NCT
of Delhi) and others reported in AIR (2000)
Delhi 266, one of the questions was whether a
direction should be issued to the lawyers to call
off a strike. The Delhi High Court noted certain
observations of this Court which are worth
reproducing:
"In Indian Council of Legal Aid and Advice v.
Bar Council of India, reported in (1995) 1 SCC
732 : (AIR 1995 SC 691), the Supreme Court
observed thus:
"It is generally believed that members of the
legal profession have certain social obligations.
e.g. to render "pro bono publico" service to the
poor and the underprivileged. Since the duty of a
lawyer is to assist the Court in the administration
of justice, the practice of law has a public utility
flavour and, therefore, he must strictly and
scrupulously abide by the Code of Conduct
behoving the noble profession and must not
indulge in any activity which may tend to lower
the image of the profession in society.
That is
why the functions of the Bar Council include the
laying down of standards of professional conduct
and etiquette which advocates must follow to
maintain the dignity and purity of the profession."
............
The Delhi High Court then considered various
other authorities of this Court, including some set
out above, and concluded as follows:-
290
"30. In the light of the above-mentioned views
expressed by the Supreme Court, lawyers have
no right to strike i.e. to abstain from appearing in
Court in cases in which they hold vakalat for the
parties, even if it is in response to or in
compliance with a decision of any association or
body of lawyers. In our view, in exercise of the
right to protest, a lawyer may refuse to accept
new engagements and may even refuse to
appear in a case in which he had already been
engaged, if he has been duly discharged from the
case. But so long as a lawyer holds the vakalat
for his client and has not been duly discharged,
he has no right to abstain from appearing in
Court even on the ground of a strike called by the
Bar Association or any other body of lawyers. If
he
so
abstains,
he
commits
a
professional
misconduct, a breach of professional duty, a
breach of contract and also a breach of trust and
he will be liable to suffer all the consequences
thereof.
There is no fundamental right, either
under Article 19 or under Article 21 of the
Constitution,
which
permits
or
authorises
a
lawyer to abstain from appearing in Court in a
case in which he holds the vakalat for a party in
that case.
On the other hand a litigant has a
fundamental right for speedy trial of his case,
because, speedy trial, as held by the Supreme
Court
in
Hussainara
Khatoon
v.
Home
Secretary, State of Bihar, (1980) 1 SCC 81 :
(AIR 1979 SC 1360) is an integral and essential
part of the fundamental right to life and liberty
291
enshrined in article 21 of the Constitution. Strike
by lawyers will infringe the above-mentioned
fundamental right of the litigants and such
infringement cannot be permitted. Assuming that
the lawyers are trying to convey their feelings or
sentiments and ideas through
the strike
in
exercise of their fundamental right to freedom of
speech and expression guaranteed by Article 19
(1) (a) of the Constitution.
We are of the view
that the exercise of the right under Article 19(1)
(a) will come to an end when such exercise
threatens to infringe the fundamental right of
another.
Such a limitation is inherent in the
exercise of the right under Article 19(1)(a).
Hence the lawyers cannot go on strike infringing
the fundamental right of the litigants for speedy
trial.
The right to practise any profession or to
carry on any occupation guaranteed by Article 19
(1)(g) may include the right to discontinue such
profession or occupation but it will not include
any right to abstain from appearing in Court while
holding a vakalat in the case.
Similarly, the
exercise of the right to protest by the lawyers
cannot
be
allowed
to
infract
the
litigant's
fundamental right for speedy trial or to interfere
with the administration of justice.
The lawyer
has a duty and obligation to co-operate with the
Court in the orderly and pure administration of
justice.
Members of the legal profession have certain
social obligations also and the practice of law has
a public utility flavour.
292
According to the Bar Council of India Rules, 1975
"an Advocate shall, at all times, comport himself
in a manner befitting his status as an officer of
the Court, a privileged member of the community
and a gentleman, bearing in mind that what may
be lawful and moral for a person who is not a
member of the Bar or for a member of the Bar in
his
non-professional
capacity,
improper for an Advocate".
may
still
be
It is below the
dignity, honour and status of the members of the
noble
profession
of
participate in strike.
unethical to do so.
law
to
organize
and
It is unprofessional and
In view of the nobility and
tradition of the legal profession, the status of the
lawyer as an officer of the court and the fiduciary
character of the relationship between a lawyer
and his client and since strike interferes with the
administration
of
justice
and
infringes
the
fundamental right of litigants for speedy trial of
their cases, strike by lawyers cannot be approved
as an acceptable mode of protest, irrespective of
the
gravity
of
the
provocation
and
the
genuineness of the cause. Lawyers should adopt
other modes of protest which will not interrupt or
disrupt court proceedings or adversely affect the
interest of the litigant. Thereby lawyers can also
set an example to other sections of the society in
the matter of protest and agitations.
31. Every Court has a solemn duty to proceed
with the judicial business during Court hours and
the Court is not obliged to adjourn a case
293
because of a strike call.
The Court is under an
obligation to hear and decide cases brought
before it and it cannot shirk that obligation on the
ground that the advocates are on strike.
If the
counsel or/and the party does not appear, the
necessary consequences contemplated in law
should follow.
The Court should not become
privy to the strike by adjourning the case on the
ground that lawyers are on strike.
Even in the
Common Cause case the Supreme Court had
asked the members of the legal profession to be
alive
to
the
possibility
of
Judges
refusing
adjournments merely on the ground of there
being a strike call and insisting on proceeding
with the cases.
Strike infringes the litigant's
fundamental right for speedy trial and the Court
cannot remain a mute spectator or throw up its
hands in helplessness on the face of such
continued violation of the fundamental right.
32. Either in the name of a strike or otherwise,
no lawyer has any right to obstruct or prevent
another lawyer from discharging his professional
duty of appearing in Court. In any one does it,
he commits a criminal offence and interferes with
the
administration
contempt
of
Court
of
and
justice
he
is
and
commits
liable
to
be
proceeded against on all these counts.
33. In the light of the above discussion we are of
the view that the present strike by lawyers is
illegal and unethical. Whatever might have been
the compelling circumstances earlier, now there
is absolutely no justification for the continuance
294
of the strike in view of the appointment of the
Commission of Inquiry and the directions being
issued in this case."
28. In our view the conclusions reached are
absolutely correct and the same need to be and
are hereby approved.
29. Thereafter in the case of Ramon Services
Pvt. Ltd. v. Subhash Kapoor reported in
(2001) 1 SCC 118 = 2001 -1 -L.W. 61, the
question was whether a litigant should suffer a
penalty because his advocate had boycotted the
Court pursuant to a strike call made by the
Association of which the advocate was a member.
In answer to this question it has been held that
when an advocate engaged by a party is on strike
there is no obligation on the part of the Court to
either wait or adjourn the case on that account.
It was held that this Court has time and again set
out that an advocate has no right to stall court
proceedings
on
the
ground
decided to go on a strike.
that
they
have
In this case it was
noted that in Mahabir Prasad's case (supra), it
has been held that strikes and boycotts are
illegal. That the lawyers and the Bar understood
that they could not resort to strikes is clear from
statement of Senior Counsel Shri. Krishnamani
which this Court recorded.
The state is as
follows:
"13.
Shri
Krishnamani,
however,
made
the
present position as unambiguously clear in the
295
following words:
"Today,
if
a
lawyer
participates
in
a
Bar
Association's boycott of a particular court that is
ex facie bad in view of the clear declaration of
law by this Hon'ble Court. Now, even if there is
boycott call, a lawyer can boldly ignore the same
in view of the ruling of this Hon'ble Court in
Mahabir Prasad Singh (1999) 1 SCC 37."
30. Thus the law is already well settled. It is the
duty of every Advocate who has accepted a brief
to attend trial, even though it may go on day to
day and for a prolonged period. It is also settled
law that a lawyer who has accepted a brief
cannot refuse to attend Court because a boycott
call is given by the Bar Association. It is settled
law
that
it
is
unprofessional
as
well
as
unbecoming for a lawyer who has accepted a
brief to refuse to attend Court even in pursuance
of a call for strike or boycott by the Bar
Association or the Bar Council.
It is settled law
that Courts are under an obligation to hear and
decide
cases
brought
before
it
and
cannot
adjourn matters merely because lawyers are on
strike.
The law is that it is the duty and
obligation of the Courts to go on with matters or
otherwise it would tantamount to becoming a
privy to the strike. It is also settled law that if a
resolution
is
passed
by
Bar
Associations
expressing want of confidence in judicial officers
it would amount to scandalising the Courts to
undermine
its
Advocates
will
authority
have
and
committed
thereby
the
contempt of
296
Court.
Lawyers have known, at least since
Mahabir Singh's case (supra) that if they
participate in a boycott or a strike, their action is
ex-facie bad in view of the declaration of law by
this Court. A lawyer's duty is to boldly ignore a
call for strike or boycott of Court/s.
Lawyers
have also known, at least since Roman Services'
case, that the Advocates would be answerable for
the consequences suffered by their clients if the
non-appearance was solely on grounds of a strike
call.
31.
It
must
also
be
remembered
that
an
Advocate is an officer of the Court and enjoys
special
status
obligations
in
and
society.
duties
functioning of the Court.
to
Advocates
ensure
have
smooth
They owe a duty to
their client. Strikes interfere with administration
of justice.
They cannot thus disrupt Court
proceedings and put interest of their clients in
jeopardy. ......"
282. Despite such positive direction by the Supreme Court, in
the State of Tamil Nadu, there are any number of lawyers' strike and
boycott of Courts. Not a single day passes without strike by lawyers in
some part of the State. We have lost very many Court working hours
as seen from the number of days of boycott of various Courts in the
State of Tamil Nadu and Pondicherry from 2006 till 31.8.2009. The
number of days of boycott of Courts is really shocking.
It may be noticed
that there is an increasing trend of strike by lawyers and more Court working
297
hours are lost because of lawyers strike.
283. At this juncture, it is apposite to refer the following passage
of Shri P.P.Rao, Senior Advocate – Strikes by Professionals,
extracted in Gururaja Chari's Advocacy and Professional Ethics –
First Edition, 2000 [page 553]:
"A strike is an extreme form of protest. It loses
its efficiency if it is resorted to frequently. During
the struggle for Independence Mahatma Gandhi
gave a call to boycott the British rule and many
lawyers responded by giving up their lucrative
practice and joining the freedom movement. Is it
wise to use this weapon in free India over
relatively
insignificant
issues?
No
every
provocation by the police or the Government
warrants a strike, there are strikes and strikes.
In the year 1986 when Mr. Justice T.P.S. Chawla,
the senior most Judge was not appointed as the
Chief Justice of the Delhi High Court although he
was entitled to the office even according to the
declared policy of the Government, the entire Bar
in Delhi went on strike. The Supreme Court Bar
too joined the strike.
It was successful.
The
Government had to yield to the demand, as the
cause was just and had wide public support. The
strike was over a basic issue affecting the
independence of the judiciary which is a matter
of overriding importance to the public at large.
Can the same thing be said in respect of a strike
over alteration of pecuniary jurisdiction of a High
298
Court or setting up of a new Bench of a High
Court or opening new District Courts?
284. So far as, Principal Bench of Madras High Court is
concerned, there was vigorous boycott of Courts from 1st July 2004
protesting against formation of Madurai Bench of Madras High Court
and also inclusion of certain Districts within the jurisdiction of Madurai
Bench.
There were clashes between two groups of Advocates and
number of cases came to be registered from March 2004 to August
2004. There were also demonstration, protest, forming human chain,
fast
unto
death
demonstrations
inside
the
Court
campus
and
procession in the Court corridors. At that stage, the Code of Conduct
for Advocates was notified.
Protesting the notification of Code of
Conduct, the Advocates in George Town/Egmore/Saidapet/Tiruvotriyur
also joined in the protest. Lawyers' strike percolated to the Districts
also. Later the Code of conduct was withdrawn. What we notice is that
there is an ever increasing trend of boycott of Courts both in High
Court as well as in the Districts.
285. Another disturbing feature is that the strikes are of long
duration.
It is a matter of common experience that during the strike
periods, no one is allowed to appear before the Court.
More often,
there will be demonstrations and procession inside the Court premises
particularly in the verandah.
Of course, now the processions in the
299
Court verandah have been stopped after the direction of the Supreme
Court in S.L.P. (Civil) No.7540/2009 dated 14.7.2009 directing that
there shall be no procession in the Court verandah.
286. Yet another disturbing feature of strikes is that they tend to
divide the Bar and at times they lead to scuffle amongst lawyers.
Democratic functioning of the Bar becomes impossible.
Litigants are
not the only sufferers. The non-affluent sections of the Bar too suffer
silently. The Judges are handicapped in disposing of cases without the
assistance of lawyers.
287. We must admit that judiciary has not strongly reacted the
lawyers' boycott calls. Pointing out adopting of soft approach towards
continuance of strikes in AIR 2001 SC 207 [Ramon Services Pvt.
Ltd. v. Subhash Kapoor and others], Para (28), the Supreme Court
observed as under:"28. Though a matter of regret, yet it is a fact,
that
the
Courts
in
the
country
have
been
contributory to the continuance of the strikes on
account of their action of sympathising with the
Bar and failing to discharge their legal obligations
obviously under the threat of public frenzy and
harassment by the striking advocates.
I find
myself in agreement with the submission of Sh.
M.N.Krishnamani,
Senior
Advocate
that
the
Courts were sympathising with the Bar by not
300
agreeing to dismiss the cases for default of
appearance of the striking advocates. I have my
reservations with the observations of Thomas, J.
That the Courts had not been sympathising with
the Bar during the strikes or boycotts.
Some
Courts might have conducted the cases even
during the strike or boycott periods or adjourned
due to helplessness for not being in a position to
decide the lis in the absence of the counsel but
majority of the Courts in the country have been
impliedly sympathisers by not rising to the
occasion
by
taking
positive
stand
for
the
preservation of the high traditions of law and for
continued restoration of the confidence of the
common man in the institution of judiciary. ......."
288. During boycott calls, most of the times no adverse orders
would be passed and thereby a convenient ground was created for the
lawyers again and again to give boycott call even on 'non-legal issue'.
As a result, as noted earlier, Courts have lost number of working days.
Hitherto, number of steps have been taken to ensure smooth/cordial
relationship between the Bar and Police by forming committees at
Districts level.
After initial euphoria not much could be deliberated
upon them and the committees are no longer functional.
289. Pendency of Cases:
There is staggering arrears of nearly three crore cases are
pending at every stage in different Courts of India.
In the country,
301
Madras High Court has the second largest pendency of cases i.e.
4,62,009 [Source – Court News - Supreme Court of India – Vol.IV,
Issue No.2 – April & June 2009]. Subordinate Courts in the State of
Tamil Nadu have pendency of 10,57,141 [Source – Court News Supreme Court of India – Vol.IV, Issue No.2 – April & June 2009].
Disposal of pending cases in a time bound manner and also dealing
with newly filed cases is a daunting challenge before the judiciary.
290. Expressing concern as to how lawyer's boycott affected
Subordinate Judiciary making it difficult in reaching the norms in 2007
2 MLJ page 1[Madras High Court Advocates' Association V.
State of T.N] First bench of this Court has held as under:"18. We are constrained to observe that while
going
through
the
norms
fixed
for
the
Subordinate Courts and when remarks have been
received from many of the Subordinate Courts
that the norms have not been able to be
achieved because of the prolonged strike by the
advocates. This is a serious issue and if it is
allowed to proceed, it may even paralyse the
functioning of the judiciary, which is not in public
interest."
291. Any judicial reform will have to go hand in hand with
administrative reforms as well as co-operation from the Bar, otherwise
speedy disposal of cases would surely then become a farce.
We wish
and hope that lawyers in the State of Tamil Nadu would rise up to the
302
occasion rendering hands of co-operation and refraining from Courts'
boycott.
292. Observing that lawyers have no right to strike and issuing
directions to Courts for framing specific rules/Code of conduct of
lawyers in Court, in Ex. Capt. Harish Uppal's case [AIR 2003 SC
739], the Supreme Court held as under:"44. One last thing which must be mentioned is
that the right of appearance in Courts is till within
the control and jurisdiction of Courts. Section 30
of the Advocates Act has not been brought into
force and rightly so.
Control of conduct in Court can only be
within the domain of Courts. Thus Article 145 of
the Constitution of India gives to the Supreme
Court and Section 34 of the Advocates Act gives
to the High Court power to frame rules including
rules regarding condition on which a person
(including an Advocate) can practice in the
Supreme Court and/or in the High Court and
Courts subordinate thereto.
Many Courts have
framed rules in this behalf.
Such a rule would be valid and binding on
all.
Let all the Bar take note that unless self
restraint is exercised, Courts may now have to
consider
Advocates,
framing
guilty
specific
of
rules
contempt
debarring
and/or
303
unprofessional
or
unbecoming
appearing before the Courts.
conduct,
from
Such a rule if
framed would not have anything to do with the
disciplinary jurisdiction of Bar Councils. It would
be concerning the dignity and orderly functioning
of the Courts.
..............
The Bar Councils cannot overrule such a
regulation concerning the orderly conduct of
Court proceedings.
On the contrary it will be
their duty to see that such a rule is strictly abided
by. Courts of law are structured in such a design
as to evoke respect and reverence to the majesty
of
law
and
dispensation
justice.
of
justice
operated by the Court.
The
machinery
according
to
law
for
is
Proceedings inside the
Courts are always expected to be held in a
dignified and orderly manner. The very sight of
an advocate, who is guilty of contempt of Court
or of unbecoming or unprofessional conduct,
standing in the court would erode the dignity of
the Court and even corrode the majesty of it
besides impairing the confidence of the public in
the efficacy of the institution of the Courts. The
power to frame such rules should not be confused
with the right to practise law.
While the Bar Council can exercise control
over the latter, the Courts are in control of the
former. This distinction is clearly brought out by
the difference in language in Section 49 of the
Advocates Act on the one hand and Article 145 of
304
the Constitution of India and Section 34(1) of the
Advocates Act on the other.
Section 49 merely
empowers the Bar Council to frame rules laying
down conditions subject to which an Advocate
shall have a right to practise i.e. do all the other
acts set out above.
However, Article 145 of the Constitution of
India empowers the Supreme Court to make
rules for regulating this practice and procedure of
the Court including inter-alia rules as to persons
practising before this Court. Similarly Section 34
of the Advocates Act empowers High Courts to
frame rules, inter-alia to lay down conditions on
which an Advocate shall be permitted to practice
in Courts.
Article 145 of the Constitution of India and
Section 34 of the Advocates Act clearly show that
there is no absolute right to an Advocate to
appear in a Court.
An Advocate appears in a
Court subject to such conditions as are laid down
by the Court.
It must be remembered that
Section 30 has not been brought into force and
this also shows that there is no absolute right to
appear in a Court. Even if Section 30 were to be
brought into force control of proceedings in Court
will always remain with the Court.
Thus even then the right to appear in Court
will be subject to complying with conditions laid
down by Courts just as practice outside Courts
305
would be subject to conditions laid down by Bar
Council of India. There is thus no conflict or clash
between other provisions of the Advocates Act on
the one hand and Section 34 or Article 145 of the
Constitution of India on the other.
45. In conclusion it is held that lawyers have no
right to do on strike or give a call for boycott, not
even on a token strike.
The protest, if any is required, can only be
by
giving
press
statements,
TV
interviews,
carrying out of Court premises banners and/or
placards, wearing black or white or any colour
arm bands, peaceful protect marches outside and
away from Court premises, going on dharnas or
relay fasts etc.
It is held that lawyers holding
Vakalats on behalf of their clients cannot not
attend Courts' in pursuance to a call for strike or
boycott.
All lawyers must boldly refuse to abide by
any call for strike or boycott. No lawyer can be
visited with any adverse consequences by the
Association or the Council and no threat or
coercion of any nature including that of expulsion
can be held out. It is held that no Bar Council or
Bar Association can permit calling of a meeting
for purposes of considering a call for strike or
boycott and requisition, if any, for such meeting
must be ignored. It is held that only in the rarest
of rate cases where the dignity, integrity and
306
independence of the Bar and/or the Bench are at
stake, Courts may ignore (turn a blind eye) to a
protest abstention from work for not more than
one day. It is being clarified that it will be for the
Courts to decide whether or not the issue
involves dignity or integrity or independence of
the Bar and/or the Bench.
Therefore in such cases the President of the
Bar must first consult the Chief Justice or the
District Judge before Advocates decide to absent
themselves from Court. The decision of the Chief
Justice or the District Judge would be final and
have to be abided by the Bar.
It is held that
Courts are under no obligation to adjourn matters
because lawyers are on strike. On the contrary,
it is the duty of all Courts to go on with matters
on their boards even in the absence of lawyers.
In other words, Courts must not be privy to
strikes or calls for boycotts.
It is held that if a
lawyer, holding a Vakalat of a client, abstains
from attending Court due to a strike call, he shall
be personally liable to pay costs which shall be
addition to damages which he might have to pay
his client for loss suffered by him.
46. It is now hoped
that with the above
clarifications, there will be no strikes and/or calls
for boycott.
It is hoped that better sense will
prevail and self restraint will be exercised.
Petitions
stand
disposed
of
The
accordingly."
(underlining added by us for emphasis)
307
293. As held by the Supreme Court in Ramon Services Pvt.
Ltd case "majority of the Courts in the country have been impliedly
sympathisers by not rising to the occasion by taking positive stand for
the preservation of the high traditions of law and for continued
restoration of the confidence of the common man in the institution of
judiciary. The Supreme Court further held that it is not too late even
now for the Courts in the country to rise from the slumber and perform
their duties without fear or favour particularly after the Judgment of
the Supreme Court in Mahabir Singh's case [AIR 1999 SC 287].
Inaction will surely contribute to the erosion of ethics and values in the
legal profession. The defaulting Courts may also be contributory to the
contempt of Court.
294. Role of Bar Council and its Responsibilities:
The Advocates Act 1961 gave autonomy to a Bar Council of a
State or Bar Council of India and Section 6(1) empowers them to
make such action deemed necessary to set their house in order, to
prevent fall in professional conduct and to punish the incorrigible as
not befitting the noble profession apart from admission of the
advocates on its roll. Section 6(1) (c) and rules made in that behalf.
The members of the judiciary are drawn primarily and invariably from
the Bar at different levels. The high moral, ethical and professional
standards among the members of the Bar are preconditions even for
high ethical standards of the Bench. Degeneration thereof inevitably
308
has its eruption and tends to reflect the other side of the coin. The Bar
Council, therefore, is enjoined by the Advocates Act to maintain high
moral, ethical and professional standards which of late is far from
satisfactory.
295. The Bar Council acts as the sentinel of professional code of
conduct and is vitally interested in the rights and privileges of the
advocates as well as the purity and dignity of the profession. The Bar
Council acts as the custodian of the high traditions of the noble
profession.
296. Observing that Bar Councils are expected to rise to the
occasion as they are responsible to uphold the dignity of courts and
majesty of law and to prevent interference in the Administration of
Justice, in the case of Supreme Court Bar Association v. Union of
India reported in ( (1998) 4 SCC 408) Constitution Bench of the
Hon'ble Supreme Court has held as follows:
"79. An advocate who is found guilty of Contempt
of Court may also, as already noticed, be guilty of
professional misconduct in a given case but it is
for the Bar Council of the State or Bar Council of
India to punish that advocate by either debarring
him from practice or suspending his licence, as
may
be
warranted,
in
the
facts
and
circumstances of each case. The learned Solicitor
General informed us that there have been cases
309
where the Bar Council of India taking note of the
contumacious and objectionable conduct of an
advocate, had initiated disciplinary proceedings
against
him
and
even
punished
him
for
'professional misconduct", on the basis of his
having been found guilty of committing Contempt
of Court. We do not entertain any doubt that the
Bar Council of the State or Bar Council of India,
as the case may be, when apprised of the
established contumacious conduct of an advocate
by the High Court or by this Court, would rise to
the occasion, and take appropriate action against
such an advocate. Under Article 144
of the
Constitution all authorities, civil and judicial, in
the territory of India shall act in the aid of the
Supreme Court. The Bar council which performs a
public duty and is charged with the obligation to
protect the dignity of the profession and maintain
professional
standards
and
etiquette
is
also
obliged to the act "in aid of the Supreme Court".
It must, whenever facts warrant, rise to the
occasion and discharge its duties uninfluenced by
the position of the contemner advocate. It must
act in accordance with the prescribed procedure,
whenever its attention is drawn by this court to
the contumacious and unbecoming conduct of an
advocate which has the tendency to interfere
with due administration of justice. It is possible
for the High Courts also to draw the attention of
the Bar Council of the State to a case of
professional misconduct of a contemner advocate
to enable the State Bar council to proceed in the
310
manner prescribed by the Act and the Rules
framed thereunder. There is no justification to
assume that the Bar Council to proceed in the
manner prescribed by the Act and the Rules
framed thereunder. There is no justification to
assume that the Bar Councils would not rise to
the occasion, as they are equally responsible to
uphold the dignity of the Courts and the majesty
of law and prevent any interference in the
administration justice. Learned counsel for the
parties present before us do not dispute
and
rightly so the whenever a Court of record records
its findings about the conduct of an advocate
while finding him guilty of committing Contempt
of court and desires or refers the matter to be
considered
by
the
Bar
Council
concerned,
appropriate action should be initiated by the Bar
council concerned in accordance with law with a
view to maintain the dignity of the Courts and to
uphold the majesty of law and professional
standards
and
destructive
of
etiquette.
public
Nothing
is
confidence
more
in
the
administration of justice than incivility, rudeness
of disrespectful conduct on the part of a counsel
towards the Court or disregard by the Court of
the privileges of the Bar. In case the Bar Council,
even after receiving "reference" from the Court,
fails
to
take
action
against
the
advocate
concerned, this Court might consider invoking its
powers under Section 38 of the Act by sending
for the record of the proceedings from the Bar
Council
and
passing
appropriate
orders.
Of
311
course, the appellate powers under Section 38
would be available to this Court only and not to
the High Courts. We, however, hope that such a
situation would not arise.
80. In a given case it may be possible, for this
Court
of
the
High
Court,
to
prevent
the
contemner advocate before it till he purges
himself of the contempt but that is much different
from suspending or revoking his licence or
debarring him to practise as an advocate. In a
case
of
contemptuous,
unbecoming
Advocate
on
or
blameworthy
Record,
this
contumacious,
conduct
Court
of
an
possesses
jurisdiction, under the supreme Court Rules itself,
to withdraw his privilege to practice as an
Advocate on Record because that privilege is
conferred by this court and the power to grant
the privilege includes the power to revoke or
suspend it. The withdrawal of that privilege,
however, does not amount to suspending or
revoking his licence to practice as an advocate in
other courts of Tribunals."
297. Reiterating roles and responsibilities of Bar Council,
decision on the
Ex.Capt. Harish Uppal's case
the Hon'ble
Supreme Court has held as under:
"35. ...... Thus a Constitution Bench of this Court
has held that the Bar Councils are expected to
rise to the occasion as they are responsible to
312
uphold the dignity of the Courts and majesty of
law and to prevent interference in administration
of justice. In our view it is the duty of the Bar
Councils to ensure that there is no unprofessional
and/or unbecoming conduct. This being their duty
no Bar Council can even consider giving a call for
strike or a call for boycott. It follows that the Bar
Councils and eve Bar Associations can never
consider or take seriously any requisition calling
for a meeting to consider a call for a strike or a
call for boycott. Such requisitions should be
consigned to the place where they belong viz. the
waste paper basket. In case any Association call
for a strike or a call for boycott the concerned
State Bar Council and on their failure the Bar
Council
of
India
must
immediately
take
disciplinary action against the Advocates who
give a call for strike and if the Committee
Members permit calling of a meeting for such
purpose against the Committee Members. Further
it is the duty of every Advocate to bodily ignore a
call for strike or boycott." (underlining added by
us for emphasis).
We hope that Tamil Nadu State Bar Council would rise to the occasion
313
to comply with directions of the Supreme Court in dealing with the
conduct of advocates boycott calls and take serious view of the same.
298. In
Ex. Capt. Harish Uppal's case directed the
Constitution of Grievance Redressal Committees in the level of High
Court and District Courts level to ventilate grievances:- (i) Local issues
(ii) Issues relating to one section of the Bar and another section (iii)
Issues involving dignity, integrity, independence of the Bar and
Judiciary (iv) Legislation without consultation with the Bar Councils. (v)
National issues and Regional issues affecting the Public at large/ the
insensitivity of all concerned.
299. Expressing concern over prolonged strikes an account of
rift between Police and Lawyers in W.P.No.24445/2006 reported in
2007 2 MLJ Page 1 [Madras High Court Advocates' Association
v. The State of Tamil Nadu and others], First Bench of this Court
proposed constitution of the State Level Co-ordination Committee to
examine any complaint or illtreatment of any Advocate at the hands of
the Police officials and to redress the grievance and thereby to
maintain cordial relationship between Police and lawyers.
300. As directed by the First Bench, in G.O.Ms. No.1249 Home
Police
IX
Department
dated
28.12.2006
to
maintain
cordial
relationship between the Police and lawyers, State Level Co-ordination
314
Committee has been constituted.
As per the G.O., composition of
State Level Co-ordination Committee is as under:1. Two Hon'ble Judges of the High Court,
Madras to be nominated by The Hon'ble
The Chief Justice. The Hon'ble Senior
Judge shall be the Chairperson and the
other Hon'ble Judges shall be the Member
..... Chairperson/Member
2. The Advocate-General, Government of
Tamil Nadu
..... Member
3. The Chief Secretary, Government of
Tamil Nadu
..... Member
4. The Principal Secretary, Home Department,
Government of Tamil Nadu
..... Member
5. The Additional Director General of Police/
Inspector-General of Police (Law and Order)
..... Member
6. The Chairman, Bar Council of Tamil Nadu
..... Member
7. The President, Madras High Court Advocates'
Association
..... Member
8. The Chairperson, Federation of District and
Subordinate Courts' Bar Association of Tamil
Nadu and Pondicherry, 17 Law Chambers,
Sampath Nagar, Erode
..... Member
Any accusation made against the Police regarding their misbehaviour
towards members of Bar are to be brought to the notice of State Level
Co-ordination committee
to sort
out disputes.
We take this
opportunity to reiterate the directions in W.P.No.24445/2006.
301. After the incident on 19.02.2009, public opinion is very
much against lawyers. Lawyers need to dispel the impression that they
are "Law Unto themselves".
We fully endorse the submissions of
learned Advocate General Mr.P.S.Raman that advocates should be
'model citizens' and lawyers must rise up to restore the glory and their
public image. Mere saying that they would go by the rules may not be
315
sufficient. On the other hand "Self conscious engagement" on the part
of the lawyers individually and also collectively is required.
302. As observed by the Supreme Court in Ex. Capt. Harish
Uppal's case, we hope that in future there will be no strikes and/or
calls for boycott.
It is hoped that better sense will prevail upon
lawyers and self restraint will be exercised.
303. Lawyers' strike call from 29.01.2009:Madras High Court Advocates Association (MHAA) announced
indefinite boycott of Courts in Tamil Nadu demanding an end to the
war in Sri Lanka. Lawyers took out a rally shouting slogans inside the
Court premises against genocide to Tamils in Sri Lanka. They stopped
MTC Bus and took it to Kilpauk Medical College Hospital to pay homage
to Muthukumar, who had committed self-immolation earlier in the day
over the Sri Lankan war. They are alleged to have caused damage to
the Bank of Ceylon, E.V.R. Periyar Salai, Kilpauk and also caused
damage to the car belonging to the Bank Manager. In this regard, a
case was registered in Veppery Police Station Cr.No.80/2009 under
Section 143, 144, 149 & 336 IPC of Section 3 (1) of TNP(PDL) Act.
304. On 30.01.2009 a large group of lawyers entered into the
Court
Halls
poohing
Judges,
dragged
the
Government Law Officers present in the Court.
Advocates
including
During the period of
316
boycott, Advocates shouted slogans, took out procession in the
Corridors of Court Halls using Megaphone. Senior Advocate Mr.
A.E.Chelliah, was pulled out from the First Court Hall and was manhandled by some Advocates in the presence of his wife, who is also an
Advocate.
305. Dragging out of the learned Senior Counsel Mr. A.E.Chelliah
from the Court was most unfortunate. The Advocates dared to enter
Court Hall No.1 and dragged the Senior Advocate Mr.A.E.Chelliah and
his wife just for the reason that they were arguing the case in the
Court. In our considered view, it was clearly an attempt to interfere
with the administration of justice. The Principle is that those who have
duties to discharge in a Court of Justice are protected by the law and
shielded by the law to discharge their duties. The advocates in turn
have
duty
to
protect
the
Courts
and
act
in
furtherance
of
from
02.02.2009
to
administration of Justice.
306.
The
lawyers
strike
continued
09.02.2009. MHAA continued the boycott demanding end to the war in
Sri Lanka. They took out procession in the High Court Corridors using
Megaphones and also organised demonstrations and also conducted
meetings inside and outside the Court premises. The Advocates who
willingly participated in the Court proceedings were prevented from
attending the Court by the striking lawyers.
317
307. On 04.02.2009, the striking Lawyers are said to have
caused damage to several shops in Paris during the Bandh in support
of the Sri Lankan Tamils. A complaint was also lodged by the owner of
the shops. In this connection three cases were registered in B2Esplanade Police Station in Crime No. 73/2009 u/s 147, 143, 188, 286
IPC r/w 3(1) of TNPPDL Act, Crime No.74/2009 u/s 147, 148, 341,
324, 307 and 506(ii) IPC r/w 3(1) of TNPPDL Act and Crime
No.75/2009 u/s 147, 332, 353, 354 and 506(ii) IPC r/w 3(1) of
TNPPDL Act.
308. At about 2.30 A.M. (05.02.2009) about 40 Advocates are
said to have scaled over the compound wall of the High Court premises
and damaged the temporary shelter put up in connection with security
measures, Frisking Cubicle installed at the entrance of the High Court.
In this connection a case was registered in B4-High Court Police
Station Crime No.8/2009 u/s 147, 294(b), 427 506(ii) r/w 3(1) of
TNPPDL Act. On 05.02.2009 forenoon, MHAA convened a meeting at
the Library building and resolved to continue the boycott.
309. Some of the Advocates, who were involved in the
occurrence were arrested. The arrested Advocates were taken to the
quarters of the VII Metropolitan Magistrate, Saidapet in a police
vehicle. It is alleged that number of offenders gathered and raised
318
slogans against the Police which resulted in a scuffle between the
Advocates and Police. To reduce the tension, the advocates were taken
to Rajarathinam Stadium, Egmore and the Additional Metropolitan
Magistrate had gone to the Stadium. Additional Metropolitan Magistrate
remanded the advocates to judicial custody and immediately released
them on bail on personal bonds.
310. The boycott continued till 09.02.2009. On 10.02.2009
advocates resumed the work. After one day's work, again on
11.02.2009 MHAA continued the boycott by taking out procession and
raising slogans in the Court Corridors.
311. For days together lawyers have been boycotting the courts
and taking out procession and demonstrations demanding that the Sri
Lanka Government to announce cease fire operation against LTTE. Sri
Lankan issue was of no direct concern to the legal fraternity which is
clearly a political issue. Lawyers were responsible for the protests and
demonstrations
and
raising slogans
in
the Court
Corridor
and
preventing the advocates who wanted to attend the Court proceedings
and thereby creating tense situation in the Court premises during the
strike period.
312. In W.P.No.7646/2006, first Bench of this Court directed
that no political activity is to take place within the High Court campus.
319
In the said order, the Registrar-General and the concerned Asst.
Commr. of Police were directed to remove all the political hoardings,
cut-outs and advertisements inside the premises of the High Court or
on the compound wall of the premises.
313. Order in W.P.No.7646/2006 dated 20.6.2006 reads as
under:
"(1) The Registrar General, High Court, Madras
and the concerned Assistant Commissioner of
Police, High Court, Madras, are directed to ensure
that no political activity of any manner including
display of political cutouts, banners, posters or
organizing dharnas and meetings or birthday
celebration of any party leaders takes place
within the premises of the High Court.
(2) The Registrar General and the concerned
Assistant Commissioner of Police are directed to
remove
forthwith
all
the
political
hoardings,
cutouts, advertisements, photographs etc, placed
inside the premises of the High Court or on the
compound wall of the premises.
(3) In case of any violation of the order of this
Court,
the
Registrar
General/the
concerned
Assistant Commissioner of Police is directed to
report the names of the lawyers or persons
indulging in such activities to the Chief Justice.
320
(4) The advocates of the various Associations of
this court are also requested to co-operate with
the Registrar General/Assistant Commissioner of
Police to maintain the decorum and dignity of this
Court.
314. The lawyers' boycott sympathising with Sri Lankan Tamil
Population and organising demonstrations and protest inside High
Court premises was in clear violation of this Court's order in
W.P.No.7646/2006. Unfortunately, the above direction was never
implemented nor any show cause notice was issued to the protesting
advocates.
We
are
of
the
view,
had
the
directions
in
W.P.No.7646/2006 been strictly implemented the events would not
have taken an ugly turn on 17.02.2009 and on 19.02.2009.
315. The directions in W.P.No.7646/2006
Mutatis Muntandis
shall apply to the District courts and Moffusil courts. In so far as
District courts and Moffussil courts in the place of Registrar General
the District Judges and in the place of Asst. Commr. of Police, the
concerned Superintendent of Police are directed to ensure compliance
of the directions in W.P.No.7646/2006.
316. We direct the Registrar General to send copy of the order
in W.P.No.7646/2006 dated 20.06.2006 to the Bar Council, all the Bar
Associations in the Principal Bench and to Madurai Bench and to the
321
District Judges for being circulated to all the Bar Associations and Bar
Councils in the District courts and in the Moffussil courts.
317. We further direct as per the directions of the Supreme
Court in SLP (Civil) No. 7540 of 2009 dated 14.7.2009, there shall be
no procession in the Court verandah or in any part of the court
premises except within their Association Halls, that too in a peaceful
manner.
318. Occurrence on 17.02.2009:- Dr.Subramaniam Swamy,
President/Janata Party appeared in Court Hall No.III on 17.2.2009
before the Bench comprising the Hon'ble Justice P.K.Misra and the
Hon'ble Justice K.Chandru to implead himself in connection with
Chidambaram Natarajar Temple's case. When the hearing of the case
was in progress, at about 11.45 A.M., a group of advocates entered
into the Court Hall and assaulted Dr.Subramaniam Swamy and threw
eggs on him. The lawyers are also said to have attacked Mr.Kadher
Mohideen, Assistant Commissioner of Police who went inside the Court
Hall to control the lawyers by disrupting the Court proceedings.
Inspite of the warning,
the attack continued for 15 minutes. The
Bench has recorded the incident and directed the Registry to place the
order before the Hon'ble The Acting Chief Justice and also forwarded a
copy of the order to the Hon'ble The Chief Justice of India. Based on
the complaint lodged by Mr.Kadher Mohideen, ACP, a case was
322
registered in B4-High Court Police Station Crime No.13/2009 u/s 147,
451, 355,332, 506(ii), 294(B) and 153A IPC r/w Section 3(1) of
TNPPDL Act.
319. By the order dated 19.2.2009, Bench directed that the
incident on 17.2.2009 be treated as PIL and directed that PIL to be
heard
by
five
member
of
Judges
to
go
into
Dr.Subramaniam Swamy in W.P.No.3498/2009.
the
attack
on
The incident on
17.02.2009 has trigged the whole incident. It is on the said complaint
lodged, handful of advocates who attacked Dr.Subramaniam Swamy
went to B4-High Court Police Station volunteering to surrender which
led to the unsavoury incident on 19.2.2009.
320. Observing that it is the solemn duty of every Court to
proceed with the Judicial business during Court hours and that no
Court should yield to pressure tactics or boycott calls or any kind of
browbeating in Mahabir Prasad Singh's case (1999) 1 SCC 37 :
(1998 AIR SCW 3806: AIR 1999 SC 287), the Supreme Court held
as under:"2. Judicial function cannot and should not be
permitted to be stonewalled by browbeating or
bullying methodology, whether it is by litigants or
by counsel. Judicial process must run its even
course unbridled by any boycott call of the Bar,
323
or tactics of filibuster adopted by any member
thereof. High Courts are duty bound to insulate
judicial functionaries within their territory from
being demoralised due to such onslaughts by
giving full protection to them to discharge their
duties without fear. But unfortunately this case
reflects apathy on the part of the High Court in
affording such protection to a judicial functionary
who resisted, through legal means, a pressure
strategy slammed on him in open Court."
In para (16) it was further held as under:-
"16. If any counsel does not want to appear in a
particular Court, that too for justifiable reasons,
professional decorum and etiquett require him to
give up his engagement in that Court so that the
party can engage another counsel. But retaining
the brief of his client and at the same time
abstaining from appearing in that Court, that too
not on any particular day on account of some
personal inconvenience of the counsel but as a
permanent feature, is unprofessional as also
unbecoming of the status of an advocate. No
324
Court is obliged to adjourn a cause because of
the strike call given by any association of
advocates or a decision to boycott the Courts
either in general or any particular Court. It is the
solemn duty of every Court to proceed with the
judicial business during Court hours. No Court
should yield to pressure tactics or boycott calls or
any kind or browbeating."
321. The incident on 17.02.2009 and voluntary surrender of
advocates in Cr.No.13/2009 has trigged the sordid episode on
19.02.2009.
The
learned
Senior
Counsel
Mr.R.Krishnamoorthy
submitted that the occurrence at Court Hall No.III on 17.02.2009
might be an offence under Section 175, 179, 180 IPC and all of which
are only non-cognizable offence and therefore, advocates could not
have
volunteered
to
surrender
on
19.02.2009.
It
was
further
submitted that as per the procedure contemplated under Section 345
Cr.P.C., arrest is totally inapplicable to the occurrence on 17.02.2009.
Since, larger Bench has seized up the matter, we do not propose to
express any opinion on the above submissions.
322. Suffice it to note that Mr.R.Karuppan, has categorically
stated that they have gone to B4-High Court Police Station to
voluntarily surrender in connection with B4-High Court Police Station
325
Cr.No.13/2009. As pointed out earlier, on 19.02.2009
ordered
that
five
member
Judges
would
hear
the
Court has
W.P.(PIL)
No.3498/2009 to go into the attack on Dr.Subramaniam Swamy. After
having known that PIL was ordered to be heard by a larger Bench
quite possibly, lawyers have gone to B4-High Court Police Station to
surrender themselves.
323. The learned Senior Counsel Dr.Rajeev Dhavan, submitted
that the surrender of lawyers on 19.02.2009 was a mock surrender
only to bargain registration of case against Dr.Swamy. It was therefore
submitted that it was unbecoming conduct of lawyers to enact such
mock surrender and urged us to initiate proceedings against those
responsible for the mock surrender and to provoke the incident on
19.02.2009.
324. In so far as the incident in Court Hall III on 17.02.2009,
public
interest
litigation
is
pending
before
the
Larger
Bench.
Cr.13/2009– B4-High Court Police Station has also been registered
against lawyers and investigation is pending. That apart, when PIL is
pending as to the attack of Dr.Swamy we do not propose to go in
detail in the above matter. Nor do we think it appropriate to issue any
direction for initiation of proceedings against those lawyers.
326
325. Occurrence on 19.02.2009:At the risk of repetition, let us recapitulate the happenings on
19.2.2009:
10.30 A.M.
11.30 A.M.
12.00 Noon
2.00 – 2.30 P.M.
Dr. Subramaniam Swamy appeared before ACJ Court and in Court
Hall No.III.
For providing security to Dr.Subramaniam Swamy, JCP mobilised
105 Police personnel.
Dr. Subramaniam Swamy leaves High Court campus.
Police personnel go to B2-Esplanade Police Station for debriefing.
Advocate Mr.Vijayendran and Mr.Kunaraja appeared in B2Esplanade Police Station stating that they would surrender and
insisted for the list of Advocates involved in Crime No.13/2009.
Large number of Advocates led by Mr.R.Karuppan, Rajinikanth,
Vijayendran, Pugazhenthi and Jayakumar had gone to B4-High
Court Police Station and insisted for registering the complaint
against Dr. Subramaniam Swamy and Radha Mohan as a precondition to their surrender.
On receiving information, Mr.Prem Anand Sinha, DC and
Mr.M.Ramasubramani, JCP rushed from B2-Esplanade Police
Station to B4-High Court Police Station.
3.00 – 3.30 P.M.
On the basis of the complaint by Advocate Mr.Rajinikanth, case
was registered in Crime No.14/2009 under Sec.3(1) SC/ST
(Prevention of Atrocities) Act and under Sec.506(ii) IPC.
Available strength in B2-Esplanade Police Station was shifted to
B4-High Court Police Station.
3.00 – 3.45 P.M.
Advocates demanded copy of FIR and the same was handed over
to them.
Advocates then started demanding that Dr.
Subramaniam Swamy to be arrested and only thereafter, they
would surrender and there was slogans raising.
Addl CoP (L&O) and JCP (Central Zone), 2 Dcs, 9 Acs, 11
Inspectors, 4 S.Is. and 90 TSP men came as an additional
strength.
Advocates were apprehended and those Advocates who resisted
the arrest were also taken to custody.
3.45 – 3.55 P.M.
Stone pelting. Both sides claim that other side pelted stones first.
[Dispute as to time of arriving of Addl. CoP (L&O) Mr.Viswanathan
and command to be dealt with later].
[Teargas shells were fired and lathicharge was ordered. There is
dispute as to the time firing teargas shells and lathicharge which,
we shall deal with it little later].
327
326. Exercise of Jurisdiction under Article 226 :Both sides have filed counter-affidavits and reply affidavits.
There are number of inconsistent and varying versions.
In the
affidavit filed by Mr.Paul Kanagaraj, Ms.Nalini and Mr.Sampathkumar,
it is averred that at 3.30 P.M., they have seen group of Police
personnel throwing stones on the Advocates. They have also averred
that the Police in mufti were wearing Black and White mingled freely
with the Advocates and they were the provocateurs. In her affidavit,
Ms.Nalini also averred that Policemen were seen carrying stones in a
small cloth bag.
327. Drawing our attention to varying versions, learned Senior
Counsel Dr.Rajeev Dhavan submitted that the issue involves disputed
questions of fact which cannot be determined except on evidence and
therefore, the same are not fit to be taken up for adjudication in
exercise of Writ jurisdiction.
It was further argued that there is no
worthy reliable evidence to arrive at the conclusion and therefore,
Court should be slow in embarking upon the adjudication of highly
disputed questions of fact.
Even after lifting the veil, Court can still
say that the materials available are not sufficient to arrive at the
conclusion. Submitting that when number of persons were injured and
the
various
factors
are
to
be
gone
into
for
determining
the
compensation, such complicated questions of fact cannot be gone into
in writ jurisdiction. Learned Senior Counsel further submitted that the
massive facts and events are judicially "unmanageable" and therefore,
328
identification
of
determining the
the
delinquent
compensation
Police
cannot
officers
and
question
be determined
of
exercising
jurisdiction under Article 226 of Constitution of India. In support of his
contention, learned Senior Counsel placed reliance upon 1958 SCR
499 [Union of India v. T.R.Varma]; (2005) 12 SCC 725 [Orissa
Agro Industries Corporation Ltd. v. Bharati Industries] and
(1969) 3 SCC 769 [Gunwant Kaur v. Municipal Committee,
Bhatinda].
328. Observing that where highly disputed questions of fact
exist which cannot be determined except on evidence, the High Court
should not normally entertain the Writ Petition, in 1958 SCR 499
[Union of India v. T.R.Varma], the Supreme Court held as follows:".........On
the
determination
other
in
this
hand,
the
petition
point
for
whether
the
respondent was denied a reasonable opportunity
to present his case, turns mainly on the question
whether he was prevented from cross-examining
the witnesses, who gave evidence in support of
the charge. That is a question on which there is a
serious dispute, which cannot be satisfactorily
decided without taking evidence.
It is not the
practice of courts to decide questions of that
character in a writ petition, and it would have
been a proper exercise of discretion in the
present case if the learned Judges had referred
the respondent to a suit."
329
329. In (2005) 12 SCC 725 [Orissa Agro Industries
Corporation Ltd. v. Bharati Industries], Para 7, the Supreme Court
held as under:"7. .............. Where a complicated question of
fact is involved and the matter requires thorough
proof on factual aspects, the High Court should
not entertain the writ petition. Whether or not the
High Court should exercise jurisdiction under
Article 226 of the Constitution would largely
depend upon the nature of dispute and if the
dispute cannot be resolved without going into the
factual controversy, the High Court should not
entertain the writ petition."
330. Observing that only as a matter of exception High Court
can exercise its discretion under Article 226 of Constitution and
entertain Writ Petitions involving disputed questions of fact requiring
oral evidence, in (1969) 3 SCC 769 [Gunwant Kaur v. Municipal
Committee, Bhatinda], Para 14, the Supreme Court held as follows:"14. .............. The High Court is not deprived of
its jurisdiction to entertain a petition under Article
226
merely
because
in
considering
the
petitioner's right to relief questions of fact may
fall to be determined. In a petition under Article
226 the High Court has jurisdiction to try issues
both of fact and law. Exercise of the jurisdiction
is, it is true, discretionary, but the discretion must
330
be exercised on sound judicial principles.
When
the petition raises questions of fact of a complex
nature, which may for their determination require
oral evidence to be taken, and on that account
the High Court is of the view that the dispute may
not appropriately be tried in a writ petition, the
High
Court
may
decline
to
try
a
petition......................"
331. In (2003) 6 SCC 581 (T.K.Rangarajan v. Govt. of
T.N.), the Supreme Court has reiterated the jurisdiction of this Court
under Article 226 of Constitution of India in the following words:"5. At the outset, it is to be reiterated that under
Article 226 of the Constitution, the High Court is
empowered
to
exercise
its
extraordinary
jurisdiction to meet unprecedented extraordinary
situation having no parallel.
It is equally true
that extraordinary powers are required to be
sparingly used.
The facts of the present case
reveal that this was most extraordinary case,
which called for interference by the High Court,
as the State Government had dismissed about
two lakh employees for going on strike."
332. In (1980) 2 SCC 593 (Gujarat Steel Tubes Ltd. v.
G.S.T.Mazdoor Sabha), the Supreme Court held as under:" ..... Article 226 is a sparing surgery but the
lancet operates where injustice suppurates. .......
judicial daring is not daunted where glaring
331
injustice demands even affirmative action.
......
And an appellate power interferes not when the
order appealed is not right, but only when it is
clearly wrong.
The difference is real though
fine."
333. In case of alleged rigging of Polling Booths in the Chennai
Corporation Election, referring to the above decisions, in (2007) 2
MLJ 129 [All India Anna Dravida Munnetra Kazhagam, Chennai
v. State Election Commissioner and others] (in which one of us
was a member – F.M.I.K.,J) summed up the legal position as under:"156. ...... (iv) In a Public Interest Litigation,
whenever injustice is meted out to a large
number of people, the Court should not hesitate
to step in.
(v) In a writ petition under Article 226 of
Constitution, even questions of fact of complex
nature can be determined.
..................
(viii) If the monstrosity of the situation or other
exceptional
circumstances
cry
for
timely
jurisdictional interdict or mandate, the Court
should not hesitate to exercise its extraordinary
power under Article 226 of the Constitution.
(ix) The mentor of law is justice and a potent
drug should be judicially administered.
(x) Judicial daring is not daunted where glaring
injustice demands even affirmative action. ......"
332
334. Exercise of jurisdiction under Article 226 of Constitution of
India is not daunted, where glaring injustice demands affirmative
action. This is the suo-moto taken up matter treated as Public Interest
Litigation.
Whenever injustice is meted out to a large number of
people, Court will not hesitate in stepping in.
In furtherance of the
public interest and in the interest of justice, on the available materials,
it is necessary to enquire into the incidents on 19.2.2009.
335. In Gunwant Kaur's case cited supra, Para 16, the
Supreme Court held as follows:"16. In the present case, in our judgment, the
High Court was not justified in dismissing the
petition on the ground that it will not determine
disputed questions of fact.
The High Court has
jurisdiction to determine questions of fact, even if
they are in dispute and the present, in our
judgment, is a case in which in the interests of
both the parties the High Court should have
entertained
the
affidavit-in-reply
petition
from
and
the
called
for
respondents,
an
and
should have proceeded to try the petition instead
of relegating the appellants to a separate suit."
336. The above said decision of the Supreme Court in Gunwant
Kaur's case cited supra was followed in a decision of the Supreme
Court in ABL International Ltd. v. Export Credit Guarantee
Corporation of India Ltd. [(2004) 3 SCC 553], wherein Para 19,
333
the Supreme Court held as under:"19. Therefore,
it is clear from the above
enunciation of law that merely because one of the
parties to the litigation raises a dispute in regard
to the facts of the case, the Court entertaining
such petition under Article 226 of the Constitution
is not always bound to relegate the parties to a
suit.
In the above case of (Gunwant Kau
(Kunwant
Kaur
v.
Municipal
Committee,
Bhatinda (1969) 3 SCC 769) this Court even
went to the extent of holding that in a writ
petition, if the facts require, even oral evidence
can be taken.
appropriate
This clearly shows that in an
case,
the
writ
Court
has
the
jurisdiction to entertain a writ petition involving
disputed questions of fact and there is no
absolute bar for entertaining a writ petition even
if the same arises out of a contractual obligation
and/or involves some disputed questions of fact."
337. As held by the Supreme Court in Rohtas Industries Ltd.
v. Staff Union (AIR 1976 SC 425 : (1976) 2 SCC 82 : 1976-ILLJ-274), the writ power has by and large been the people's sentinel
on the qui vive and to cut back on or liquidate that power may cast a
peril to human rights.
338. Having regard to the facts of the case, High Court has
discretion to entertain or not to entertain the Writ Petition. Ofcourse,
by and large when disputed questions of fact arise, High Court would
334
not go into such disputed facts and filing of suit may be the
appropriate remedy. Where necessary facts as to negligence/excesses
are available, the High Court can proceed under Article 226 of
Constitution of India. No hard and fast rules can be laid down on
these aspects and obviously the remedy under Article 226 would
depend upon facts and circumstances of each case.
339. The case before us is unprecedented. On 19.2.2009 even
when the Courts were functioning, without informing ACJ/Registrar
General, Police force was brought in.
Police went on rampage and
about 175 lawyers, staff and also litigant public
injuries.
have sustained
Needless for us to state that exceptional or extraordinary
circumstances of this case warrant exercise of jurisdiction under Article
226 of Constitution of India.
The monstrosity of the situation and
exceptional circumstances in this case convince us to exercise
jurisdiction under Article 226 of Constitution of India.
340. In fact, due to the enormity of the situation that prevailed
in the campus of this Court, the Full Bench of this Court thought it fit
to suo moto issue a Writ in order to examine the ghastly incident, its
cause and the perpetration, for the purpose of passing appropriate
orders to uphold the dignity and honour of this great Institution.
Therefore, we are convinced that the Writ Petition is maintainable and
we reject the said submission of the learned counsel.
335
341. Learned Senior Counsel Dr.Rajeev Dhavan submitted that
disputed questions of fact cannot be determined except on evidence
and that hardly any reliable evidence has been placed before the
Court. Learned Senior Counsel would further urge that serious doubts
arise as to the acceptability of Videos and Photos and based on such
slender materials court cannot adjudicate upon the highly disputed
questions of fact. We are unable to subscribe the submissions that
there are no sufficient materials produced before us to resolve the
contentious points raised.
342. Both in the suo-moto Writ Petition and other Writ Petitions
filed by the Advocates, Respondents have filed counter-affidavits
traversing each and every allegations in the affidavits.
Respondents
have clearly and distinctly dealt with the averments in the affidavits.
Both sides advanced an elaborate submissions and we have heard the
matter at length.
In fact, hearing of the case stretched over for a
couple of weeks. Based on the averments in Petitioners' affidavits and
counter-affidavits and from the elaborate submissions, we are able to
analyse and examine the contentious points raised before us. We are
not to point accusing the finger either against the Police or Lawyers.
We are primarily concerned with the Police excess/intrusion into the
Majesty of the Institution and the attack on the persons and Court
buildings and damage to Court properties paralysing the institution.
336
343. Probabilities are important elements of consideration. On
the materials placed before us and calling in aid experience and by
preponderance of probabilities, exercising Writ jurisdiction, we proceed
to examine the facts and the contentious points urged before us.
344. Admissibility of sound and video recordings and
photography:A series of videos and photographs have been filed and shown
in the Court and were marked as under:➢
Video
Clippings
provided
by
the
Police
on
the
19.02.2009 incident – CD-R1
➢
Video Clippings provided by Mr.Viswanathan – CD-R2
➢
Video Clippings filed by Ms.Vaigai -CD-P3 & P4
➢
Video Clippings provided by Mr.Karuppan-CD-P5
➢
Video Clippings provided by MHAA-CD-P1 & P2
➢
Photographs filed by both petitioners and respondents
345. Questioning authenticity of videos filed by petitioners, the
learned senior counsel Dr.Rajeev Dhavan submitted that only the
Police
video
recording
have
been
authenticated,
as the Police
videographer has filed an affidavit in the Court and Photos and Videos
produced by the Petitioners is not authenticated and hence unreliable.
Placing reliance upon R.M.Malkani V. State of Maharashtra (1983)
337
1 SCC 471 the learned senior counsel submitted that admissibility of
tape
record
of
relevant
conversation
is
subject
to
it
being
authenticated in terms of the source, time and place without
tampering.
346. A contemporaneous tape record of a relevant conversation
is admissible under Section 8 of the Evidence Act. The tape recorded
conversation is relevant to the matter in issue if the identification of
the voice and accuracy of the conversation is proved by eliminating the
admissibility of erasing the recorded tape.
347. In so far as admissibility of tape recorded statement, in
1995 (supp.) SCC 611 the Hon'ble Supreme Court has held as
follows:"A tape-recorded statement is admissible in
evidence, subject to the following conditions:(1) The voice of the speaker must be
identified by the maker of the
record
or
other persons recognising his voice. Where the
maker is
unable to identify the voice, strict
proof will be required
to
determine
whether
or not it was the voice of the alleged speaker.
(2) The accuracy of the tape-recorded
statement must be proved by
the
maker
of the record by satisfactory evidence: direct or
circumstantial.
338
(3) Possibility of tampering with, or erasure
of any part of, the tape-recorded statement must
be totally excluded.
(4) The tape-recorded statement must be
relevant.
(5) The recorded cassette must be sealed
and must be kept in safe or official custody.
(6) The voice of the particular speaker must
be clearly audible and must
not
be
lost
or
distorted by other sounds or disturbances.
In Ramsingh's case that, the tape-recordings were held misleading
and could not be relied on because in most places they were
unintelligible and of a poor quality and of no use so their potential
prejudicial effect outweighed the evidentiary value of the recordings.
348. We are conscious that anything which is born of trickery or
trapping or cunningness should be very cautiously and carefully
considered by the Court before it is admitted and accepted.
349. That a bald denial of the contents of a video tape is not
adequate to doubt its authenticity; there should be material to show
that the video clippings are doctored or morphed. This view was
reiterated
in
Jagjit
MANU/SC/5473/2006
Singh
:
AIR
V.
State
2007SC590.
of
In
Haryana
R.M.Malkani
339
V.State of Maharashtra MANU/SC/0204/1972:1973CrilJ228. It
was noted that in Shri.N.Sri Rama Reddy, Yusufalh Esmail Nagree
V. State of Maharashtra MANU/SC/0092/1967 : 1968CrilJ103
and S. Pratap Singh V. State of Punjab MANU/SC/0272/1963 :
(1996) ILLJ458SC a conversation or dialogue recorded on a tape
recording machine was accepted as admissible evidence. But, it was
pointed out that such a conversation is admissible provided:- first, the
conversation is relevant to the matters in issue; second, there is
identification of the voice; third, the accuracy of the tape recording is
proved by eliminating the possibility of erasing the tape record. 'A
contemporaneous tape record of a relevant conversation is a relevant
fact and is admissible under Section 8 of the Evidence Act. It is
resgestae. It is also comparable to a photograph of a relevant
incident. The tape recorded conversation is therefore a relevant fact
and is admissible under Section 7 of the Evidence Act. This is, of
course, subject to ascertaining the genuineness of the tape recording
and its being free from tampering or mutilation.
350. The respondents have not disputed that the video clippings
filed by the petitioners relate to the occurrence. Even though video
clippings filed by the petitioners do not have the running time, We
have watched the videos and looked into the photos as corroborative
piece of evidence. In addition to the materials, we have watched the
videos and looked into the photos for proper appreciation of various
340
contentions. In so far as timings of chasing of lawyers and lathi
charge, we have mainly taken into account the video clippings filed by
the respondents CD-R1 & CD-R2. It is to be noted that in CD-R1 filed
by the respondents video clippings jump at several places with 'no
footages'.
We have mainly referred to the Video clippings filed by
Mr.Viswanathan, Addl. CoP (L & O) C.D-R2.
351. Justice B.N.Srikrishna's report:
On 26.02.2009, the Hon'ble Supreme Court requested Justice
B.N.Srikrishna, former Judge of the Supreme Court to inquire into the
incident which happened on 19.02.2009 and file a report. After holding
initial enquiry on 28.02.2009, 01.03.2009, Justice B.N.Srikrishna
submitted his report on 04.03.2009. On 06.03.2009, the Hon'ble
Supreme Court took the report as part of the record and passed the
following order:
Report of enquiry submitted by Justice
Srikrishna is taken on record.
"...... Report is being sent to the State
Government and also the Acting Chief Justice of
the Madras High Court for appropriate action if
any".
352. In his report Justice B.N.Srikrishna though found police
excess, observed that the "circumstances facing the police on the
fateful day justified use of force by the police".
341
353. Placing reliance upon (1984) 3 SCC 161 (Bandhua
Mukti Morcha v. Union of India) the learned Senior Counsel Mr.
Rajeev Dhavan, submitted that Enquiry Report would furnish prima
facie evidence of the facts and data gathered by the Commission
during the objective and impartial enquiry carries much value. The
learned Senior counsel urged us to consider the report as primafacie
evidence of lawyers unruly behaviour justifying the use of force by the
police. The learned Senior counsel would further submit that since the
Supreme Court has taken on record Justice Srikrishna's report which
finds no mention as to any objections by the lawyers, to that extent,
Justice Srikrishna report attains prima facie finality and urged us to
look into the report of Justice Srikrishna as of evidentiary value.
354. With due respect, even in the beginning of hearing of the
matter,
we made
it clear
that we may
not
refer
to
Justice
B.N.Srikrishna's report. The reason being it was only an Interim
Report. By its order dated 26.02.2009, Hon'ble Supreme Court asked
ACJ to decide terms of reference in consultation with the Advocate
General of the Madras High Court and Presidents of various Bar
Associations in Madras and place before the Committee the terms of
reference to the committee. It does not transpire from the report of
Justice Srikrishna that any such terms of reference was finalised by
ACJ for reference before the committee.
342
355. Having regard to the then continuation of Courts' boycott
by lawyers, Justice B.N.Srikrishna filed only an Interim Report. Since it
is only an Interim Report, with due respect, we were of the view we
may not refer to Justice B.N.Srikrishna report. We have heard the
matter at threadbare. Since overwhelming materials are placed before
us by way of affidavits and counter affidavits and other materials and
submissions, we proceeded to analyse the matter afresh.
356. Incidents – Surrender, Stone pelting and
Lathicharge:We proceed to deal with this on the following aspects:➢
Whether there was pre-plan, premeditated and Police
conspiracy as alleged by the Advocates.
➢
Whether presence of Police force on the Court premises
was uninvited and unjustifiable or was it only a precautionary measure.
➢
Whether
there
was
imminent
"Threat
Perception"
compelling the need for mobilising the Police as alleged
by the Police.
➢
Attack and who were responsible for the incident.
➢
Whether there is Contempt of Court and if so, who are to
be proceeded for Contempt of Court.
➢
Moulding of relief.
343
357. Re.contention -Premeditation and Police conspiracy:In the affidavits after affidavits, lawyers have alleged that the
Police action against the unruling mob was pre-planned conspiracy to
attack the lawyers.
Lawyers have taken varied stance that Police
unleashed violence against the lawyers as part of pre-planned and
premeditated plan. In the representation dated 22.2.2009, Ms.Vaigai
has stated that "Police carried out a premeditated and well planned
attack on the judiciary".
In his affidavit dated 09.3.2009, Mr.Paul
Kanagaraj, President MHAA has alleged that "it is a pre-planned
conspiracy to create a chilling effect on the legal fraternity in the State
including the judiciary". In her affidavit dated 11.3.2009, Ms. Nalini,
and in his affidavit dated 11.3.2009, Mr.Velmurugan, averred that the
attack was with pre-plan.
alleging that
knowledge
Secretary".
Mr.Velmurugan has gone a step further
" the attack could not have been done without the
of
the
Home
Minister,
Home
Secretary
and
Chief
In the affidavit of Mr.M.Baskar dated 07.9.2009, pure
unfounded speculation has been made terming the incident as
"Operation Blackcoat".
358. Likening the February 19 violence to 'Operation Blue Star'
at the Amritsar Golden Temple, Mr.S.Prabakaran, President TNAA
submitted that similar preplanning preceded the campus violence,
which was code-named by Police as "Operation Black Coat".
344
Reiterating the averments, in their counter-affidavits Ms.Vaigai and
Mr.Paul Kanagaraj would also submit that the entire violence of the
Police was pre-planned and premeditated.
359.
Mr.S. Prabhakaran, President, TNAA and Ms.Vaigai,
learned counsel have drawn our attention to the letter of the
Commissioner in D.O.Lr.No. 151/S.B.VII/2009 dated 6.2.2009 to the
Registrar-General bringing it to the notice of the Registrar-General the
behaviour of the lawyers indulged in agitations, entering into ruckus
with Police officials and disturbing the public peace. It was therefore
contended that the pre-determined mind of CoP is evident from the
letter dated 6.2.2009. Based on the said letter we are not inclined to
hold that there was conspiracy by Police against lawyers. The tenor of
the said letter only indicates the anguish of CoP about the law and
order situation in and around the High Court premises and not a predetermined mind as alleged by the lawyers.
360. The stand of lawyers that the incident was pre-planned and
premeditated is unfounded. The allegations are pure unfounded
speculation and unsupported by any materials. As rightly submitted by
the learned Senior Counsel Dr.Rajeev Dhavan, mere assertion that it is
pre-planned and premeditated would not constitute the evidence and
mere assertion cannot by themselves lead to the conclusion that there
was Pre-arranged Plan. To constitute premeditation, one should have
345
reflected the determination. There is no material showing expression
of 'ill-feelings' or 'previous threat' by the Police to say that there
was Pre-arranged plan.
361. The allegations that the incident was well prepared in
furtherance of Police conspiracy are baseless and mere speculation
based on nothing.
Conspiracy consists in the agreement of two or
more persons to do an unlawful act, or to do a lawful act by unlawful
means.
Absolutely, there is no material to show that there was
transmission of thoughts sharing unlawful design.
conspiracy,
there
must
be
'common
design'
To constitute
and
intention' to work in furtherance of common design.
'common
Equally, the
averments are lacking as to what was the unlawful design. In fact, if
the group of lawyers had not gone to B4-High Court Police Station for
surrender, the day 19.2.2009 would have passed off like any other
normal day. While so, it is farfetched to contend that the incident on
19.2.2009 was a pre-planned operation by the Police conspiracy.
We have no hesitation in rejecting the plea of pre-plan and Police
conspiracy.
362. Whether mobilisation of Police force as
pre-cautionary measure:Before we deal with this question, it is necessary to refer
security plan of the High Court and the sanctioned strength of Police
personnel for the security of High Court.
346
363. The High Court of Judicature, Madras is one of the three
Chartered High Courts established by Letter Patent granted by Her
Majesty Queen Victoria bearing dated 26.06.1862. High Court, Madras
is the highest Court in the State. The building is of antiquity Heritage
building with Indo-Sarocenic construction.
High Court is a place of
historical importance attracting tourists.
For any tourist, visit to
Chennai is incomplete without a visit to High Court buildings.
Court sprawls in an extent of 38 acres.
High
The premises comprises of
Court Halls, Judges' Chambers, Registry, Legal Services Authority,
Museum, Law Chambers, Canteen, B4-High Court Police Station, City
Civil Court, Family Court, Small Causes Court, Tribunals, Government
Press, Law College, Fire Station, BSNL office, Railway Booking Office,
Post Office etc.
It is a place visited by number of litigants and public.
Having regard to the antiquity and nature of Heritage building, there is
compelling need to preserve the present building and premises for
posterity.
364. Mobilisation of Police Force – Whether Precautionary
Measure
Security
to
the
High
Court
:
W.P.No.3197/2007
–
02.02.2007: Providing security to the High Court has drawn the
attention for quite some time.
Having regard to the vast extent
accommodating number of Courts and floating population of lawyers,
347
staff, clients, witnesses, visitors and vendors, in G.O.Ms.No.1536 dated
11.10.1996, B4-High Court Police Station was established sanctioning
Police personnel.
365.
As
per
G.O.Ms.No.1810
dated
15.12.1997,
Police
protection was provided to all the Courts in the High Court complex
and four Magistrate Courts in Chennai and sanctioning additional
manpower, arms, ammunition and equipments, vehicles etc.
As per
G.O.Ms.No.51 dated 18.1.1999, Security wing was created to the
Hon'ble the Chief Justice and to the Hon'ble Judges, High Court,
Madras by providing personal security in the Cadre of Sub-Inspector of
Police.
366. For the purpose of ensuring security in High Court
premises,
Registrar-General,
High
Court,
Madras
filed
W.P.No.3197/2007. In the said Writ Petition in W.P.No.3197/2007, it
was stated that the total sanctioned strength of Police personnel
comprising Officers and other rank is 252. Considering that High Court
is a Court of Record under Article 215 of Constitution of India as well
as it is housed in a Heritage building and that it also attracts thousands
of visitors every day and that there is an imperative need to provide
security cover to the premises of the High Court, in W.P.No.3197/2007
[Registrar-General, High Court, Madras v. State of Tamil Nadu,
rep. by the Chief Secretary to Government, Chennai and others
348
(reported in (2007) 2 MLJ 456)], Division Bench of this Court has
issued the following directions to maintain the sanctioned strength of
252 Police personnel. In Para (13) the Division Bench held as under:"13. ......
(i)The respondents are directed to maintain the
sanctioned strength of 252 Police personnel
comprising of officers and other rank and
provided in the tabular column above (para 6)
at all times and also to fill up the existing
vacancies within a period of four weeks from
today.
(ii)The Registrar-General of the High Court will
indicate
a
suitable
place
for
constructing
accommodation for locating the Police outpost
within
the
High
Court
campus
to
the
respondents, who will construct a building at
their own costs with a built-up area of 4000
sq.ft., comprising of ground floor and first floor.
(iii)No personnel, who is coming within the
sanctioned strength of 252, comprising of
various
categories
listed
above
shall
be
deputed to any other work, except for the work
of the High Court and no diversion of the force
will
be
permitted,
except
with
the
prior
permission of the Honourable Chief Justice of
the High Court.
(iv)The respondents 1 and 2 are directed to
ascertain
the
number
of
Police
personnel
required for providing security at the residence
of the Honourable Judges within a period of
four weeks from today and also issue an order
349
sanctioning
the
said
strength
and
report
compliance to this Court regarding the same,
within a period of two weeks thereafter.
(v)Adequate training to the Police force deployed
as suggested by the Special Committee should
be given.
367. By the letter dated 31.5.2007, Government of India issued
guidelines for the security of High Courts and District/Subordinate
Courts in the country.
In the said guidelines, it has been mentioned
as follows:"(v) The High Court in the respective States/UTs
should be declared as High Security Zone.
(vi)There should be fool-proof Access Control
System for the premises of the High Courts
with
regulated
entry
for
all
concerned,
including Judges, staff members, advocates,
plaintiffs and respondents, accused persons,
under trials, press, general public, etc., on the
basis of passes/Identity Cards. Different types
of passes/Identity Cards may be issued to
different visitors.
(vii)There
checking
should
of
be
persons
random
frisking
entering
the
or
Court
premises.
(viii)There should be provision for the separate
frisking of the under trials, preferably in the
lock-up provided for them.
350
368. After various incidents of terrorist attacks in the form of
serial blasts in different parts of the country and pointing that there
have been certain incidents of bomb blasts in Court complexes in the
State
of
Uttar
Pradesh,
reiterating
the
necessity
for
security
arrangements in the High Courts and District/Subordinate Courts and
also in respect of Hon'ble Judges,
on 17.11.2008 directions were
issued to the Chief Secretary, State of Tamilnadu by the Home
Secretary, Government of India to review the security arrangements in
the High Court and District/Subordinate Courts and also in respect of
Hon'ble Judges.
369. Pursuant to these directions, Security Committee of the
High Court reviewed the entire security system as per the revised
security arrangement system in Para 2.5 of the Security Plan that
Static Armed Guard of one plus four to be posted at all entrances in
the High Court campus.
Those guards are to provide very effective
check against any surprise entry into restricted areas and form the
first barrier against any unauthorised intrusion.
The proposal
envisaging deployment of 451 personnel was approved by the
Committee
of
Judges
in
their
meeting
dated
28.1.2009.
In
compliance, Quick Reaction Team (QRT) headed by an Officer has
been positioned inside the High Court premises from 28.1.2009.
As
per the direction of the Court in W.P.No.3197/2007, the sanctioned
strength is 252 Police personnel. The proposal for deployment of 451
351
personnel was approved by the Committee of Judges in their
Proceedings dated 28.1.2009.
370. Shifting of Police personnel from B2-Esplanade
Police Station to B4-High Court Police Station:- After a long
period of strike, on 19.2.2009, Advocates resumed work.
On
19.2.2009, Dr. Subramaniam Swamy appeared in Court Hall No.III
and in another Court.
The following security was mobilised for the
security duty in connection with the visit of Dr.Subramaniam Swamy
(excluding the actual strength available for duty in Court) at 9.00 A.M.
Add Jcs Dcs ADCs Acs Ins SIs
l.
p.
.
CoP
Othe
rs
Tot
al
23
65
105
QRT
1
20
21
SAG
1
20
21
25
105
Local
TOTAL
1
1
3
3
1
4
1
4
8
8
147
Elaborate bandobust arrangement was made with 3 DCs including
Mr.Prem
Anand
Sinha-DCP,
Mr.Ramasubramani-JCP(North)
and
Mr.Viswanathan-Addl. CoP. Addl. CoP Mr.Viswanathan and JCP (North)
Mr.Ramasubramani came to the High Court campus at 10.00 A.M. and
remained till 11.30 A.M.
Dr. Subramaniam Swamy left the Court at
11.30 A.M. and it was safe exit.
When Dr. Subramaniam Swamy
appeared in the Court absolutely there was no ruckus.
352
371. According to Mr.Ramasubramani-JCP (North), since Dr.
Subramaniam Swamy within 'Z' category has to appear in the Court
and that it is the responsibility of the State to protect the person under
'Z' category, to supervise the security arrangements, he came to the
High Court at 9.00 A.M. to personally oversee the bandobust
arrangements. Further, according to JCP (North), since the Assembly
was in Session and the Hon'ble Chief Minister was then hospitalised, he
took an objective decision in mobilising the strength to provide security
to Dr. Subramaniam Swamy. We do feel that mobilising strength for
security duty in connection with the visit of Dr. Subramaniam Swamy
was a bonafide decision taken by JCP (North). After Dr. Subramaniam
Swamy left, the Police personnel gathered at B2-Esplanade Police
Station for debriefing. The debriefing after bandobust is with meaning
and purpose i.e. to find out any happenings during security and the
personnel when will have to report back and to give such other
instructions.
372. In the counter-affidavit of the jurisdictional DCP, Mr.Prem
Anand Sinha, it is averred that when the Police personnel gathered at
B2-Esplanade Police Station for debriefing, at about 12.00 noon, ACP –
MKB Nagar told them that few Advocates approached him to surrender
and requested for list of accused Advocates concerned in B4-High
Court Police Station Crime No.13/2009 and list of accused Advocates
was furnished to them by ACP – MKB Nagar.
353
373. From the Videos filed by the Respondents, it was seen that
lawyers have gone to B4-High Court Police Station at 14.00 hours for
surrender.
It was also seen from the Videos that lawyers raised
slogans and insisted for registration of case against Dr. Subramaniam
Swamy.
Case in Crime No.14/2009 was registered against Dr.
Subramniam Swamy and copy of FIR was handed over to the lawyers
at 14:20
– 14:22 hours.
At that time, only one Police Officer was
seen in the midst of the lawyers. After receiving copy of FIR, lawyers
started raising slogans and shouting for arrest of Dr. Subramaniam
Swamy. After about 14:22 hours, there is a gap in the Video clippings.
In the Videos, we notice the presence of Police personnel shifted to
B4-High Court Police Station between 14:22 to 15:34 hours.
374. According to Mr.Ramasubramani-JCP (North), he and
Mr.Prem Anand Sinha-DCP and other Police personnel waited in B2Esplanade Police Station waiting for surrender of Advocates.
On
receiving information that there was sloganeering and protest in B4High Court Police Station, available strength in B2-Esplanade Police
Station was shifted to B4-High Court Police Station.
375. In his counter-affidavit Mr.Viswanathan-Addl. CoP has
averred that when he came to B2-Esplanade Police Station, he learnt
that the entire Police force present in the B4-High Court Police Station
354
at 10.00 A.M. continued to be stationed near B4-High Court Police
Station.
The averments in Para (8) alleging that the Police force
continued to be stationed near B4-High Court Police Station is not
correct.
It was seen from the Videos, from 14:00 – 14:20 hours,
there was no Police force near B4-High Court Police Station. Only on
information, about brewing tension in B4-High court Police Station,
Police force was shifted from B2-Esplanade Police Station to B4-High
Court Police Station.
376. As per the order in W.P.No.3197/2007, the sanctioned
strength of Police personnel was 251 (excluding ACP).
As per the
security plan of the High Court, the sanctioned strength is 451
(including officers). According to Police that the strength mobilised on
19.2.2009 was 292 in addition to the existing strength of 130 more or
less within the limits of 451 which is the sanctioned strength as per the
security plan.
377. By and large, the then strength actually available for duty
in the High Court (Guards, Judges Chambers, Halls, Gates, Booth,
Traffic etc.) is only about 130. In addition to the existing strength in
the High Court 130, on 19.2.2009 additional strength mobilised was
147 + 118 + 26 = 291 totalling 421 [130 + 291 = 421]. As per the
security plan, the sanctioned strength of 451 personnel was mainly for
man
power
deployment
at
(i)
Gates;
(ii)
Armed
Guard;
(iii)
Surveillance; (iv) Bomb detection; (v) Bomb Disposal; (vi) Control
355
Room;
(vii)
Baggage
Screening;
(viii)
High
Court
Halls/Judges
Chambers; (ix) Other Court premises; (x) Parking areas and (xi) QRT.
When the manpower deployment was for multi-purpose ensuring
security, evidently that force was not meant to be garnered in B4-High
Court Police Station. The additional strength deployed on 19.02.2009
were TSP, SAG, TNCF and not regular Armed Reserve. While so, it
cannot be contended that strength mobilised on 19.02.2009 was only
as per the sanctioned strength of security plan.
378.
THREAT
PERCEPTION:
Learned
Counsel
Dr.Rajeev
Dhavan mainly argued that in the assessment of Police, there was
'Threat Perception' which necessitated
subsequent acts.
mobilisation of force and
According to the Police 'Threat Perception' was on
two counts:- (i) High Court being high security Zone, Police was
concerned about general security and advocates gathered in huge
numbers were sloganeering. (ii) Antecedents of Advocates particularly
activities from November 2008.
379. Submitting that holistic threat perception meant taking into
account various antecedent facts related to the incidents of Advocates'
excess in and around the High Court campus and involving Advocates,
learned Senior Counsel enumerated number of incidents such as:➢
2001 – 2007 - 92 criminal cases booked against
several Advocates.
356
➢
12.11.2008 – Incident of clash between two
groups of Dr. Ambedkar Government Law College
Students within the High Court campus.
➢
29.1.2009
–
Advocates
entered
the
Court
presided by ACJ and asked Advocates there to join
in boycott. Further, the Advocates went to the Vth
Court presided by Justice Manikumar and disrupted
proceedings by banging on the door.
Advocates
moved inside High Court complex shouting slogans
on megaphone against Sonia Gandhi.
➢
30.1.2009 – Advocates hijacked MTC bus to pay
homage Muthukumar.
Subsequently, about 100
advocates went in a procession inside the High
Court campus and sloganeered.
➢
03.2.2009 – 50 Advocates staged demonstration
to pay homage to Muthukumar and burnt a portrait
of Subramaniam Swamy.
➢
04.2.2009 – Hartal declared all over Chennai by
political parties. Cycle shop (Bombay Cycle Mart)
opposite the High Court which was still open
damaged by advocates.
➢
11.2.2009
Mr.Kanakaraj
–
100
led
Advocates
demonstration
headed
and
by
burnt
Congress Party flag and portraits of Congress
357
leaders within High Court campus.
➢
12.2.2009
–
60
Advocates
headed
by
Mr.Kanakaraj took out procession within High
Court campus and burnt Congress party banner.
Later, 75 Advocates went in procession from High
Court and attempted to lay siege to the Army
Headquarters, Chennai.
➢
13.2.2009 – Two group of Advocates headed by
Mr.Kanakaraj and Mr.Rajinikanth led a procession
to picket Central Railway Station.
➢
16.2.2009 – 20 Advocates sloganeered and burnt
portraits of Sonia Gandhi and Sri Lankan President
within the High Court campus. Later 35 Advocates
burnt
their
Election
Photo
Identity
Cards
renunciating their Indian citizenship and burnt
photo of Sonia Gandhi.
It was submitted that in the above circumstances, there was serious
'Threat Perception' and in view of such 'Threat Perception', Police
mobilised additional strength to provide security to Dr. Subramaniam
Swamy and in the light of surrender by lawyers.
Learned Senior
Counsel would further submit that it is for the Police to take reasonable
action to deal with the 'Threat Perception' and it is not for the Court
to substitute its own view whether mobilisation of strength was
necessary or not. It was further submitted that leeway to be given to
358
the Police to deal with the threats to Law and order situation or public
order, Police must evaluate over all such Threat Perception.
380. Ofcourse, there have been number of cases against the
Advocates.
But in most of the cases, charge sheets have not been
filed. We do not subscribe to the contention of 'Threat Perception'
based on the prior incidents. As we pointed out earlier, on 19.2.2009
lawyers resumed work and from the morning Courts were smoothly
functioning.
Visit of Dr. Subramaniam Swamy passed off peacefully.
Surrender was initially supposed to be a voluntary surrender. In our
considered view, there was no imminent 'Threat Perception' as
alleged by the Police to shift the Police personnel from B2-Esplanade
Police Station to B4-High Court Police Station and to mobilise
additional strength.
381. In the counter-affidavit of Mr. Viswanathan, Addl. CoP, it is
averred that when he reached B2-Esplanade Police Station at 3.10
P.M., he learnt that "entire Police force secured in the morning at
10.00 A.M. continued to be stationed near High Court Police Station".
The stand of Mr.Viswanathan that Police Force continued in B-4 Police
Station is not correct. As we pointed out earlier, at the time of
registration of FIR and handing over copy of FIR to lawyers at 2.21
P.M., in the video clippings, we do not find additional police strength;
But only Inspector of Police with lawyers.
359
382. According to Mr.Ramasubramani-JCP (North) and Mr. Prem
Anand Sinha-DCP, there was a meeting held by ACJ on 18.2.2009 and
they were instructed to take firm action against the lawyers involved in
the attack on Dr. Subramaniam Swamy in Crime No.13/2009. Mr.
P.N.Prakash, learned
counsel
for Mr.Ramasubramani-JCP (North)
submitted that Assembly was in Session and the Hon'ble Chief Minister
was in hospital and Dr. Subramaniam Swamy was in 'Z' category
protection and therefore, even after his safe exit, and number of
advocates gathered and since there was sloganeering and trouble
brewing up, shifting of Police personnel was an objective decision
taken by the JCP (North) in "Good faith".
383. According to the General Clauses Act X of 1897 "A thing
shall be deemed to be done in 'good faith' where it is in fact done
honestly whether it is done negligently or not.". Good faith is denied
in Sec.52 IPC as under:"Nothing is said to be done or believed in "good faith"
which is done or believed without due care and attention."
Good faith requires not logical infallibility, but due care and attention.
But how far erroneous actions or statements are to be imputed to want
of due care and caution must in each case, be considered with
reference
to
the
general
circumstances
and
the
capacity
intelligence of the person, whose conduct is in question.
and
When a
360
question arises as to whether a person acted in good faith, then it
devolves upon him to show not merely that he had a good intention
but that he exercised such care and skill as the duty reasonably
demanded for its due discharge.
384. Observing that the test is of a reasonable and prudent
man, in Re : S.K.Sundaram (2001) 2 SCC 171, the Supreme Court,
in Paras (28) and (29) held as follows:"28. The expression "good faith" in criminal
jurisprudence has a definite connotation.
Its
import is totally different from saying that the
person concerned has honestly believed the truth
of what is said. Good faith is defined in Section
52 of the Indian Penal Code thus:
"52. Nothing is said to be done or believed in
'good faith' which is done or believed without due
care and attention."
29. See the language of the law in this regard. It
starts in the negative tone excluding all except
what is allowed to be within its amplitude.
Insistence sought to be achieved through the
commencing words of the definition "nothing is
said tobe done or believed in good faith" is that
the solitary item included within the purview of
the expression "good faith" is what is done with
"due care and attention". Due care denotes the
degree of reasonableness in the care sought to
be
exercised.
In
Black's
Law
"reasonable care" is explained as
Dictionary,
361
"such a degree of care, precaution, or diligence
as may fairly and properly be expected or
required, having regard to the nature of the
action,
or
of
the
subject-matter
and
the
circumstances surrounding the transaction. It is
such care as an ordinary prudent person would
exercise under the conditions existing at the time
he is called upon to act". "
385. From the Video clippings [Respondents' side CD-R1], we
have seen that at 15:34 hours, lawyers were raising slogans asking
the Police “to go out” from the campus. Sloganeering continued till
15:41
hours.
We
could
see
from
the
Video
clippings,
Mr.Ramasubramani-JCP(North) and other Police Officers trying to
pacify the protesting lawyers.
At about 15:45 hours, lawyers have
been forcibly taken to custody in the Police van. There was a lot of
hustle and tussle while taking the lawyers to custody.
386. After the lawyers were taken to custody and Police van left
the premises, at 15:47 hours, there was a lot of protest by lawyers.
What initially started as protest against the Police turned to be 'stone
pelting' by the lawyers from 15:50 hours onwards. It was seen from
the Video clippings, lawyers have taken position in the corridors of
Courts and pelted stones towards the Police for about two to three
minutes.
Within a couple of minutes stones were pelted from all
directions. Police also pelted stones and matched the lawyers in their
362
lawlessness. Stones that came their way was quickly thrown back by
the Police.
387. The relationship between the Police and lawyers has never
been cordial. In (2007) 2 MLJ 1 [Madras High Court Advocates
Association represented by its President, High Court Campus,
Chennai v. State of Tamil Nadu rep. by the Chief Secretary, Fort
St. George, Chennai and others], Division Bench of this Court has
set out the genesis of this problems of lawyers vs. Police rivalry and
expounded measures to nip such incidents in bud.
Any friction
between the fraternity of lawyers and police carry dangerous portents
of escalation beyond a point of easy containment.
388. In the background of persistent rift between police and
lawyers, bonafide in shifting the Police personnel from B2-Esplanade
Police Station to B4-High Court Police Station has to be examined. The
phrase "due care and attention" implies genuine efforts to reach the
truth and not the ready acceptance of ill-natured belief. The test is of
a reasonable and prudent man.
resumed
work
on 19.2.2009
As we pointed out earlier, lawyers
and
the Courts were
functioning
smoothly.
In fact, visit of Dr. Subramaniam Swamy passed off
peacefully.
In such circumstance, was it prudent on the part of the
Police to accept the surrender of lawyers in B4 High Court Police
Station.
Police had well known that Advocate Mr.Vijayendran was
363
involved in several cases.
Even though, Mr. Vijayendran, Advocate
involved in Crime No.13/2009 approached the Police, Police have not
chosen to arrest him. On the other hand, it is stated that they have
believed the words of Mr. Vijayendran that the Advocates involved in
Crime No.13/2009 have proposed to surrender.
389. B4-High Court Police Station is situated in the midst of City
Civil Court and Small Causes Court. City Civil Court, Principal Judge's
chamber and Court are situated just abutting the access road on the
northern side of B4-High Court Police Station.
City Civil Court's
Annexure building and Small Causes Court and Family Court along with
creche are on the eastern side and north eastern side respectively.
Since the Courts were functioning on that date, before shifting the
Police force from B2-Esplanade Police Station to B4-High Court Police
Station, JCP (North) Mr.M.Ramasubramani and DCP Mr.Prem Anand
Sinha ought to have exercised 'due care and attention' and foreseen
the consequences. The situation for further protest and sloganeering
was created by the Police by forcibly taking the lawyers into custody at
3.45 P.M.
390. As we have pointed out earlier, Police personnel must have
been shifted from B2-Esplanade Police Station to B4-High Court Police
Station between 2.30 to 3.30 P.M.
For shifting the Police personnel
from B2-Esplanade Police Station to B4-High Court Police Station, JCP
(North) must have certainly obtained permission from the CoP.
On
364
coming to know about brewing tension in the High Court campus
between 2.00 to 2.30 P.M., the CoP called Addl. CoP Mr.Viswanathan
at 2.45 P.M. and instructed him to go to High Court (according to
Mr.Viswanathan B-2 Esplanade Police Station) to monitor the situation.
The then Commissioner's Cellphone No. is 9444465555. Cell Phone of
Mr.A.K.Viswanathan is 9444000029. Cell Phone of Mr.Ramasubramani
is 9940455455. The call log of CoP between 14:23:53 to 15:55 hours
are as under:919444465555
919940455455
Incoming
19-2-09
14:23:53
87
919444591111
11041
919444465555
919841021543
Incoming
19-2-09
14:38:22
75
919444591111
11041
919444465555
919444465555
919841021543 Roming-IC 19-02-09 14:38:38
919940455455 Outgoing 19-02-09 143951
74
92
919444590031
919444591111
0
11041
919444465555
919444000029
Outgoing 19-02-09
144518
118
919444591111
11041
919444465555
919443049191
Incoming 19-02-09
144757
41
919444591111
11041
919444465555
919444465555
919443049191 Roming-IC 19-02-09
919940455455 Incoming 19-02-09
144814
150102
40
137
919444596800
919444591111
0
11041
919444465555
919600039077
Incoming 19-02-09
152312
65
919444591111
11041
919444465555
914424301269
Incoming 19-02-09
152808
105
919444591111
11041
919444465555
919444465555
914424301269 Roming-IC 19-02-09
919445012233 Outgoing 19-02-09
152824
153008
105
221
919444591162
919444591111
0
11041
919444465555
919444000029
Outgoing 19-02-09
153505
87
919444591111
11041
919444465555
919444000029
Incoming 19-02-09
153812
49
919444591111
11041
919444465555
919444000029
Incoming 19-02-09
155049
89
919444591111
11041
919444465555
919600041411
Outgoing 19-02-09
155250
36
919444591111
11041
919444465555
919444000029
Incoming 19-02-09
155557
10
919444591111
11211
35640601166038 1104-IBSCommr
35640601166038 1104-IBS- JCP(N)
Commr
calls CoP
35640601166038 1104-IBS- CoP calls
Commr
JCP(N)
35640601166038 1104-IBS- CoP calls
Commr
Addl.CoP
(L&O)
35640601166038 1104-IBSCommr
35640601166038 1104-IBS- JCP(N)
Commr
calls CoP
35640601166038 1104-IBSCommr
35640601166038 1104-IBSCommr
35640601166038 1104-IBSCommr
35640601166038 1104-IBS- CoP calls
Commr
Addl.CoP
(L&O)
35640601166038 1104-IBS- Addl.CoP
Commr
(L&O)
calls CoP
35640601166038 1104-IBS- Addl.CoP
Commr
(L&O)
calls CoP
35640601166038 1104-IBS- CoP calls
Commr
DCP
35640601166038
1121Addl.CoP
Egmore
(L&O)
calls CoP
Between 2.23 P.M. to 3.55 P.M., CoP had spoken to JCP (North) at
least
three
times.
The
Commissioner
directed
Addl.
CoP
Mr.Viswanathan to go to High Court to monitor the situation. Neither
CoP nor JCP (North) have chosen to inform the High Court/ACJ about
the shifting of Policer personnel from B2 to B4 Police Station. They did
not take permission of the High Court/ACJ for deploying the Police
Personnel.
365
391. It is not the case of Police that they informed the High
Court/ACJ about the brewing tension and mobilisation of additional
Police force. From the call log of CoP, we do not find any such calls to
the High Court Registry. The official Cellphone of the then RegistrarGeneral is 9444449933. From the call log of CoP, we find that the first
call from Registrar-General was at 16:01:33 hours about which we
shall deal a little later.
392. It was nextly contended that in view of volatile situation,
the Police were free to act and where the situation warranted in
exercise of 'Good faith', Police mobilised additional strength.
As we
pointed out earlier, B4-High Court Police Station is in the midst of City
Civil Court and Small Causes Court in the High Court campus. What
ever be the compelling situation before mobilisation and deployment of
Police inside the Court premises, since Courts were functioning at that
time, Police ought to have foreseen the consequences. Having regard
to the fact that High Court/ACJ was not informed about the
mobilisation of strength, in our considered view, the Police have not
exercised 'due care and attention' before deployment of Police
personnel.
393. In 1995-2-LW (Crl) 723 [Rajendran and 23 others
Contemners/Respondents/Police
Officers/Advocates
of
366
Saidapet Bar], in Saidapet Metropolitan Magistrate Court, for taking
into custody of one Natarajan accused in a registered Crime and his
Advocate
who
came
to
surrender
before
Magistrate.
The
said
Natarajan and his advocates were taken away by the police forcibly,
which, Police closed northern gates fully. Southern gate was partially
closed.
Taking serious view of the act of Police in closing the gates
and observing that the Police officers must have intimated to the
Senior Magistrate about the closure of northern gate fully and the
southern gate partially, Division Bench of this Court held as under:"61-A. ....... Police Officers must have intimated to
the Senior Magistrate about the closure of northern
gate fully and the southern gate partially and the
purpose for which they had closed the gates.
They
must have equally informed the other heads of the
department, in the variety of officers situated in that
campus.
If there is an emergency, the police can
certainly act, without forwarding prior intimation, but
even then they would certainly owe a duty to inform
the concerned officers of court as well as other
officers soon thereafter about the closure of the
gates, in a situation, emergent and the reasons, that
led to such closure.
It cannot be overlocked, that
several hundred of member of the public would
usually be visiting this campus in Saidapet.
The
question is not whether any one of the members of
the public or even the Magistrate themselves had
complained about the inaccessibility to the premises,
leading to obstruction of the course of justice."
367
394. We fully agree with the view taken by the Division Bench.
For deployment of additional strength in the High Court campus, the
Police ought to have obtained permission of ACJ/Registrar General. If
there was an emergency, Police can certainly act, without prior
intimation. Even then they are duty bound to inform the ACJ/Registrar
General as to the problem in the campus and mobilisation of additional
strength to handle the situation.
395. Between 2.00 to 3.45 P.M., the trouble was brewing.
In
his earlier report, CoP averred that around 2.30 P.M. trouble was
brewing, he deputed Addl. CoP Mr.Viswanathan along with JCP (Central
Zone) and other officers (118 men and officers) to the High Court to
take charge of the situation. As seen from the report of CoP and the
counter filed by Mr.Prem Anand Sinha, DCP, at about 3.00 P.M., the
Addl. CoP (L & O) and JCP (Central Zone), 2 Dcs, 9 Acs, 11 Inspectors,
4 SIs and 90 TSP men [Totally 118] came as an additional strength.
According to Addl. CoP (L & O), he arrived in the spot only at 3.50 P.M.
[regarding which, we shall deal later].
As per the Man power chart
showing the presence of Police personnel at 3.00 P.M., the total
strength was 265 personnel and officers [147 + 118].
Evidently, CoP
has learnt about the volatile situation and only because of which, CoP
asked the Addl. CoP (L & O) to go to High Court to monitor the
situation and the additional strength of 118 men and officers were also
sent to High Court campus.
368
396.
As
we
have
pointed
out
earlier,
JCP
(North)
Mr.Ramasubramani has spoken to the CoP number of times from
14:23:53 hours onwards.
Based on the information, at about 2.30
P.M., CoP has made all arrangements to send additional reinforcement.
Despite communication of the Officers who were in the field and
despatching of additional strength to the High Court, neither CoP nor
jurisdictional Officers present in the field have chosen to inform the
High Court/ACJ about the volatile situation and mobilisation of
additional strength of Police personnel and officers in B4-High Court
Police Station.
397. Onbehalf of the Registrar-General, High Court, Madras [12th
Respondent],
Mr.Muthukumaraswamy,
learned
Senior
Counsel
submitted that High Court precincts cannot be tested on the touch
stone of Criminal Procedure Code and that as per Article 215 of
Constitution, High Court is the superior Court of Records and power of
regulating the entry of Police vests with the Chief Justice.
398. As per Article 215 of Constitution of India, High Courts in
India are superior Courts of Record. They have original and appellate
jurisdiction. They have inherent and plenary powers. Unless expressly
or impliedly barred, and subject to the appellate or discretionary
jurisdiction of this Court, the High Courts have unlimited jurisdiction,
369
including the jurisdiction to determine their own powers. [See AIR
1967 SC 1 (Naresh Shridhar Mirajkar v. State ofMaharashtra) &
AIR 1993 SC 1014 (M.V.Elisabeth and others v. Harwan
Investment
&
Trading
Pvt.
Ltd.,
Hanoekar
House,
Swatontapeth, Vasco-De-Gama, Gao].
399.
The
Constitution
has
assigned
a
new
role
to
the
Constitutional Courts to ensure rule of law in the country. Under
Constitutional frame, High Court is complete self-contained and selfsufficient Institution, independent of others. Every High Court draws
its own power and jurisdiction from the provisions of Constitution.
400. The Chief Justice of High Court is the head of judiciary in
the State and in over all control of its administration.
Being a self-
contained institution, it is prerogative of the Chief Justice to regulate
the entry of Police in the campus. That is why for deploying the Police
personnel or for increasing the strength and to regulate the security by
the order
constituted.
of
the
Chief
Justice,
Security
Committee
has
been
Before deploying additional strength (in addition to the
existing personnel for security) either for providing security to VIPs
attending the Courts or under other circumstances, permission of the
High Court/ACJ ought to be obtained.
370
401. Ofcourse, in cases of Law and Order problem in the
Campus, Police cannot remain spectator as in the incident happened in
Dr. Ambedkar Government Law College, Chennai.
For deploying
additional strength, permission of High Court/Hon'ble the Chief Justice
shall be obtained.
When there is serious Law and Order problem
within the campus, Police are to necessarily act even without prior
intimation and even then, they are duty bound to inform the High
Court/Chief Justice about mobilisation of additional strength and the
steps taken in handling the situation.
In so far as the Districts, the
Principal District Judge/District Judge is the authority to regulate the
entry of Police and security arrangements on the above lines subject to
other directions issued by the High Court.
402. In fact, CoP was conscious to inform the High Court before
registration of case regarding the incident on 17.2.2009.
17.2.2009,
CoP
had
written
letter
Rc.No.203/SB
VII/09
On
dated
17.2.2009 seeking concurrence of the High Court to register a criminal
case and set the criminal law in motion. In response to the said letter,
by
the
letter
dated
18.2.2009,
Registrar-General
[Roc.No.760-
A/2009/F1 dated 18.2.2009] informed the CoP "that under law, the
concurrence of the Registry is required (sic) to register a criminal case
and in view of the fact that already a complaint is preferred by Mr.
Kader Mohideen, ACP, Police should do it on its own". By and large, to
register a case concurrence of High Court is not required. We feel that
371
in the said letter of Registrar General word 'not' is missing before the
word 'required' and we think it is a typographical mistake. When CoP
was conscious of informing High Court before setting the criminal law
in motion on 19.2.2009, CoP ought to have informed the High Court
for mobilisation of extra strength.
403. In (1996) 6 SCC 323 [Commissioner of Police, Delhi
and another v. Registrar, Delhi High Court, New Delhi], the
former Prime Minister Mr.P.V.Narasimha Rao was to be provided
proximate security by SPG during his appearance in Tis Hazari Courts.
When SPG sought permission from Delhi High Court for deploying the
Police persons in Tis Hazari Courts, having regard to the practical
difficulties involved in Police personnel in the Court premises,
Administrative Committee of five Hon'ble Judges declined permission
to deploy Police personnel in Tis Hazari Courts to provide proximate
security. When Commissioner of Police moved the Supreme Court for
change of venue, accepting the decision of Administrative Committee
of Delhi High Court, Supreme Court accepted the plea of change of
venue in providing proximate security satisfactorily by deploying
necessary Police officers.
Mobilisation
of
additional
strength
in
Court premises has its own impact involving practical difficulties and
cannot be a matter of course.
372
404.
At
the
risk
repetition,
we
note
that
JCP
(North)
[Mr.M.Ramasubramani] and jurisdictional DCP [Mr.Prem Anand Sinha]
do not seem to have exercised due care and attention.
Question of
'Good faith' should be considered in the position of the Police officers
and the surrounding circumstances. After the strike, lawyers resumed
work on 19.2.2009. From the incident on 04.2.2009 and 17.02.2009
and other incidents, the Police officers must have quite known about
the unacceptable behaviour of the Advocates. While so, Police officers
ought to have tactfully handled the situation.
It is not as if some
officers in the lower hierarchy alone were in the spot.
Since the
officers in the higher hierarchy, Mr.Ramasubramani-JCP (North),
Mr.Prem Anand Sinha-DCP were in the field, they ought to have
foreseen that any slight jerk would disrupt the functioning of the
Courts.
Keeping in view the facts circumstances and Courts
functioning, in our considered view in shifting and mobilisation of Police
personnel from 2.30 P.M. to 4.30 P.M., the Police particularly CoP
Mr.Radhakrishnan, JCP (North) Mr.Ramasubramani and DCP Mr.Prem
Anand Sinha have not exercised due care and attention and are to be
held squarely responsible. This is all the more so, when they have not
chosen to inform the High Court/ACJ about mobilisation of strength.
This initial mistake was a costly mistake which led to shedding of blood
in the campus and extensive damages to the Court buildings and
properties.
373
405. In so far as, Mr.Viswanathan-Addl. CoP, as we pointed out,
he was assigned the task of monitoring the surrender of lawyers.
According to Mr.Viswanathan-Addl. CoP at 14:45 hours he was asked
by CoP to proceed to “B2-Esplanade Police Station” and monitor the
developments caused by the surrender of Advocates. Mr.ViswanathanAddl.CoP arrived at B2-Esplanade Police Station at 3.10 P.M. When he
reached B2-Esplanade Police Station, Mr.Viswanathan-Addl. CoP must
have learnt about the brewing tension in B4-High Court Police Station
and advocates resisting the surrender. Even though, he arrived at B2Esplanade Police Station at 3.10 P.M., Mr.Viswanathan, Addl. CoP has
chosen to remain in B2-Esplanade Police Station. Only after the
lawyers were taken to custody at 15:45 hours, Mr.Viswanathan-Addl.
CoP reached in B4-High Court Police Station at 3.50 P.M. Having been
assigned the task of monitoring the surrender of lawyers, we find that
Mr.Viswanathan-Addl. CoP has avoided his responsibility and chosen to
remain in B2-Esplanade Police Station.
406. In his counter-affidavit, Mr.Viswanathan-Addl. CoP has not
indicated the details of his conversation with Mr.Ramasubramani-JCP
(North) and Mr.Prem Anand Sinha-DCP.
In our considered view, Addl.
CoP Mr.Viswanathan has also not exercised 'due care and attention'
and not acted in 'good faith' in handling the situation and is to be
held equally responsible.
374
407. Surrender and Arrest:According to Police, Advocates proposed to surrender including
persons who had several cases pending against them. Initially, it was
proposed to be a voluntary surrender.
M/s.R.Karuppan, Rajinikanth,
Vijayendran, Pugazhenthi, Jayakumar and large number of Advocates
went to B4-High Court Police Station volunteering to surrender at
2.00P.M. and demanding registration of case against Dr. Subramaniam
Swamy as condition precedent. As seen from the Video produced by
the Police (CD-R1) and from the contents in Crime No.15/2009, case
against Dr. Subramaniam Swamy in Crime No.14/2009 was registered
prior to at about 2.20 P.M. and lawyers received copy of FIR at 2.21
P.M. On receipt of FIR, lawyers started raising slogans that Dr.
Subramaniam Swamy must be arrested immediately.
408. Even though, lawyers came to B4-High Court Police Station
creating an impression of voluntary surrender, it is stated that after
registration of case, they were not prepared to surrender and started
raising slogans for arrest of Dr. Subramaniam Swamy.
From the
Videos (C.D-R1 and R2), it is seen that lawyers were shouting slogans
and were unruly. After noticing slogan shouting and unruly behaviour
of the lawyers, at least at that stage, Police ought to have realised that
any reaction by them would precipitate the situation which was likely
to disrupt the functioning of the Courts. In our considered view, Police
instead of showing restraint have committed serious error in deploying
375
additional strength of Police Personnel and arresting lawyers inside the
campus. As pointed out earlier, between 14:23 hours to 15.55 hours,
there were three conversations between JCP (North) and CoP and at
14:45:18 hours, CoP issued direction to Addl. CoP Mr.Viswanathan to
proceed to High Court to monitor the situation.
additional
reinforcement
(118
personnel)
was
Even at that time,
commanded
and
additional strength of 118 reached High Court premises even at about
3.00 P.M.
409. In the counter-affidavit of Mr.Prem Anand Sinha-DCP and
from the Videos, we find that when the lawyers went to the Police
Station and at the time of registration of FIR and immediately
thereafter, there was sloganeering and commotion. It is seen from the
Videos that inspite of such commotion and volatile situation, lawyers
were forcibly taken to custody and they were taken to Thousand Lights
Police Station.
410. Onbehalf of the lawyers, it was submitted that in the melee
only innocent Advocates who were standing by were taken to custody
which provoked the lawyers to react. To ascertain about the names of
the lawyers who were taken to custody, we have called for General
Diary of Thousand Lights Police Station. But we did not find any entry
regarding High Court lawyers taken to Thousand Lights Police Station.
Ms.Jeyakodi, Inspector of Police, B2-Esplanade Police Station has filed
376
an affidavit on 29.9.2009 stating that details showing names of
arrested lawyers was kept in B4-High Court Police Station was
destroyed when the Police Station was set on fire. Regarding arrest of
lawyers, advocate Mr.G.Balaji has filed affidavit making certain
allegations against the Police officers. We are not inclined to go into
merits of rival contention. Such disputed questions could be examined
only in the trial in Cr.no.13/2009-B4, High Court Police Station and in
[Crl. R.C.No.2(S)/2009/CBI/SCB].
However, the fact remains
that the arrest of 15 Advocates triggered the whole incident. It is hard
to believe that no records were kept as to who were arrested and
where they were taken to custody. The story put forth in the affidavit
of Mr.Jayakodi, Inspector of Police that the records were destroyed in
the fire when B4-High Court Police Station was set on fire cannot be
believed. In fact, the affidavit of Mr.Jayakodi, Inspector of Police was
filed only after we repeatedly asked where the arrested Advocates
were taken to custody.
Affidavit of Mr.Jayakodi, Inspector of Police
that the records were destroyed in the fire clearly seems to be an after
thought.
By seeing the Videos, we feel that no records could have
been made as the lawyers were forcibly taken into the Van.
In the
affidavit filed by Mr.G.Balaji, Advocate it is seen that they were kept in
custody till night. B4-High Court Police Station was set on fire at 5.45
P.M. and fire was extinguished between 6.00 – 6.30 P.M.
While so,
the affidavit of Mr.Jayakodi, Inspector of Police that the records
showing arrest of Advocates were destroyed in the fire is unbelievable.
377
411. Arrest of Advocates in the Court Premises:Section 41 Cr.P.C. deals with the power of a Police officer to
arrest any person without an order from a Magistrate and without a
warrant. Section 42 deals with the power of a Police officer to arrest
any person who in the presence of a Police Officer has committed or
has been accused of committing a non-cognizable offence and who
refuses on demand "to give his name and residence or gives a name or
residence which such officer has reason to believe to be false".
Section 43 empowers any private person to arrest any person who in
his presence commits a non-cognizable offence, or any proclaimed
offender. Section 44 states that when any offence is committed in the
presence of a Magistrate whether Executive or Judicial, within his local
jurisdiction, he may himself arrest or order any person to arrest the
offender and may thereupon subject to the provisions contained in the
Code as to bail commit the offender to custody. Thus the Code gives
power of arrest not only to a Police Officer and a Magistrate but also
under certain circumstances or given situations to private persons.
412. Dr. Rajeev Dhavan, learned Senior Counsel and learned
counsel Mr.P.N.Prakash contended that as per Sec.41 Cr.P.C., Police
Officer is empowered to arrest any person without an order from a
Magistrate and without a warrant and there was nothing wrong for the
Police Officers to take the lawyers to Police custody. Learned counsel
378
Mr.P.N.Prakash would submit that to diffuse the situation, Police have
taken the lawyers to custody and it cannot be said that the Police
acted with malafide. It was further urged that Police did not go into
the Court Halls searching for any accused/lawyers and when the
lawyers came to the Police Station on their own, there was nothing
wrong in taking them to custody.
413. Placing reliance upon 1995-2-LW (Crl) 723 [Rajendran
and 23 others/ Contemners/ Respondents/ Police Officers/
Advocates
of
Saidapet
Bar],
learned
counsel
Mr.P.N.Prakash
submitted that Police Officers are empowered to arrest lawyers
involved in cognizable offence any where and there is no impediment
for arresting the lawyers in the Court precincts.
414.
Reliance
was
placed
upon
1956
Rajasthan
[Rajasthan Bar Council v. Nathuram and another].
179
Observing
that arrest of counsel in the Court precincts may not amount to
contempt of Court. In the said decision, it was held as follows:"Generally speaking, arrest of counsel in the court
precincts, without more, may not amount to
contempt of Court because it cannot generally be
predicated of an arrest in such cases that it
constitutes a contemptuous interference with the
administration of justice or that it has the
tendency to cause any such obstruction."
379
415. Learned counsel Mr. P.N.Prakash also placed reliance upon
1983 LW (Crl) 289 [Roshan Beevi and others v. Joint Secretary
to the Govt. of Tamil Nadu, Public Dept. (Law and Order) and
others] and (1994) 3 SCC 440 [Directorate of Enforcement v.
Deepak
Mahajan
and
another]
to
"Arrest" and "Taking into custody".
show
distinction
between
Those decisions deal with
distinction between "Arrest" and "Taking into custody" are not of
much relevance to the case on hand.
416. Drawing our attention to Dr. D.C. Saxena V. Hon'ble the
Chief Justice of India reported in 1996 5 SCC 216 the learned
counsel Ms.Vaigai submitted that in the said case even for taking the
contemnor into custody and confine him to Tihar Jail, The Hon'ble
Supreme Court has directed Court Marshal to take custody of the
contemnor, the learned counsel Ms.Vaigai submitted that such is the
action taken by the Supreme Court in calling the Police inside the
Court premises even for handing over custody of a contemnor while so
for deploying additional strength of Police personnel, the Commissioner
of Police ought to have obtained permission of the ACJ.
417. Laying emphasis upon the concept independence of
judiciary, the learned counsel Ms. Vaigai placed reliance upon
Supreme Court Advocates-on-Record Association and another,
V.Union of India, with S.P. Gupta V. Union of India [AIR 1994
380
SCC 268] wherein it has been held as under:"75. In the draft Constitution, there was no
reference to this Directive Principle, but on being
reminded of the important plank of the freedom
movement, Article 39A was introduced which
reads thus:
"39A. The State shall take steps to secure
that, within a period of three years from the
commencement
of
this
Constitution,
there
is
separation of the judiciary from the executive in
the public services of the State".
..........
78.
During
the
Constituent
Assembly
Debates on Art. 39-A, one of the members, Shri
R.K.Sidwa on 25th November 1948 made the
following pertinent observation:
"As Dr.Ambedkar stated yesterday, ever
since its inception the Congress has been stating
that these two functions must be separated if you
really want impartial justice to be done to the
accused persons.
The arguments advanced yesterday were
that in Free India the conditions have changed and
that therefore, it is not desirable that these two
functions should be separated. The real secret, so
far as I know, of those who advocate retaining the
same position is that they want to retain their
power.
If
the
Honourable
Ministers
of
the
provincial Governments feel that these two should
not be separated, it is because they feel the power
381
of appointments which is in their patronage, would
go away from them to the High Court Judges."
.............
81.
Realising
the
significance
of
the
independence of judiciary and in order to give a
full life to that concept, the founding fathers of our
Constitution,
felt
the
need
of
separation
of
judiciary from executive and designedly inserted
Art. 50 in the Constitution after a heated debate;
because the judiciary under our constitutional
scheme has to take up a positive and creative
function in securing socio-economic justice to the
people".
418. In the above case, focus was on the independence of
judiciary and that it is the live wire of our judicial system. If that wire
is snapped, the doomsday of the judiciary will not be far of. The
contention that independence of judiciary is to be extended to the
entire Court precincts does not merit acceptance. If such contention is
to be accepted, Court premises would become a sanctuary for
criminals and it would not be possible to maintain law and order within
the precincts of Court.
419. In AIR 1945 Calcutta 107 [Niharendu v. Porter],
Special Bench of three Judges of Calcutta High Court held as under:"It has been argued that arrests inside the court
building are improper.
I cannot agree with that
contention. Persons going to and from the Court
382
upon the business of the Court in connection with
litigation are exempt from arrest under civil
process, but there is no such exemption in
respect of criminal process as the case in (184312-LJQB (N.S) 49, referred to hereafter, shows.
If such general exemption were to obtain, the
court building would become a sanctuary for
criminals and the administration of justice in them
would become impossible.
There have been
cases where arrest on criminal process have
occurred in the Sessions Court when a prisoner
has been acquitted and discharged on the charge
and rearrested in the court, while the Judge is
sitting, on another charge.
A case occurred
sometime back where a litigant in a civil case on
the conclusion of his case was arrested as he was
leaving the court room on a criminal charge
preferred at Madras".
420. Read with Article 21 the directive principles in Article 39-A
of Constitution of India has been taken cognizance of by the Supreme
Court. The State shall secure that the operation of the legal system
promotes Justice on basis of equal opportunity. Placing reliance upon
State of Maharashtra V. Maubhai Pragaji Vashi and Others in
(1995) 5 SCC 730, the learned counsel Ms.Vaigai submitted that
lawyers are rendering service in accomplishing the Constitutional goal
of rendering free legal aid rendering speedy trial rendering their
assistance for speedy trial and such freedom of lawyers cannot be
383
scuttled by beating lawyers. Main plank of arguments was that lawyers
as Officers of Court are entitled to immunity within the Court campus.
421. Drawing our attention to Parliamentary privileges, the
learned counsel
privileges,
Ms.Vaigai submitted that as per Parliamentary
no member of Parliament can be arrested within the
precincts of Parliament, and permission of Speaker/Chairman to be
obtained and such immunity available even to the private person inside
the Parliament House. It was further argued that any person entering
the precincts of the Parliament are entitled to immunity and privileges.
Persuading us to draw an analogy, the learned counsel Ms.Vaigai
submitted that Court premises is like the precincts of Parliament and
submitted that
deploying
of Police
personnel
would
erode
the
independence of judiciary. It was further argued that when Section 41
Cr.P.C. cannot be applied to the precincts of Parliament, the Police
officials were not right in declaring the gathering of lawyers in the
precincts of High Court
as an "unlawful assembly". It was further
argued that independence of judiciary is a larger concept and such
independence is available even to a practising lawyer.
422. The above arguments advanced enlarging the concept of
independence of judiciary to all the activities of practising lawyers
cannot be countenanced. Source of Parliamentary privileges is from
Article 105 of Constitution of India. Article 105 of Constitution
384
empowers the Parliament to frame such Parliamentary privileges. More
important of the privileges is the freedom of speech in Parliament and
immunity to the members from any proceedings in any Court in
respect of anything said in Parliament. The powers, privileges and
immunities of each HOUSE of Parliament its committees and its
members derive their authority from Article 105 of Constitution of
India. We are of the considered view that no such analogy can be
drawn from the Parliamentary privileges to that of the Court Precincts.
The contention that there cannot be an arrest inside the Court building
under any circumstance cannot be countenanced. If such a contention
is to be accepted, Court premises would become a sanctuary for all
unlawful activities.
423. Onbehalf of the lawyers, it was contended that arrest of the
lawyers in the premises was malafide and such arrest would amount
to interference with the administration of justice.
That an arrest to
constitute contempt must be something more than arrest without legal
justification and that there must be something in the nature of
malafides, that is, an intention directly or indirectly to interfere with
the due administration of justice.
424. Generally speaking, arrest of counsel in the court precincts,
without motive, may not amount to contempt of court since it cannot,
generally be predicated of an arrest in such cases that it constitutes a
385
contemptuous interference with the administration of justice or that it
has the tendency to cause any such obstruction.
425. In AIR 1956 Raj 179 [Rajasthan Bar Council v.
Nathuram], counsel Kothari was conducting a criminal case in the
Magistrate's court and while in the middle of the case he just went out
for a few seconds, to return back into court to continue the crossexamination.
The Sub-Inspector arrested him, handcuffed him and
took him away. That was a clear case of obstruction to the course of
justice and preventing counsel from doing his duty before the court
who was then engaged fully in the actual conduct of the case and
whose progress was interfered with by the act of the Sub-Inspector.
The court held that where an arrest is sought to be made in the view
of the court or almost in its view and which causes an actual
obstruction to the judicial duties performed by presiding officer at the
time of the arrest complained against.
On this count the Sub-
Inspector was adjudged guilty of contempt and the more aggravating
count was that the Sub-Inspector refused to produce counsel before
the Magistrate even after the later ordered it. On both counts he was
found guilty and fined Rs.100/- and to suffer imprisonment for one
month in case of default of payment within a month.
426. Only where the circumstances of arrest of a counsel show
that it was in the bad faith and tended to interfere with the
386
administration of justice, it could be held to be contempt.
When a
counsel is arrested for criminal process, mala fide has necessarily to be
shown to indicate that there was an intention to interfere with the due
course of justice.
As we pointed out earlier, Advocates involved in
Crime No.13/2009 volunteered to surrender.
Though, arrest of
lawyers was by force, it cannot be said that the arrest was mala fide.
427. Rule of law applies to all and lawyers are no
exception:There is fine distinction between discharge of professional duties
and other acts of the lawyers in the campus.
As an officer of the
Court, lawyers may be entitled to protection in discharging their
professional duties which again is subject to their adherence to the
Code of Conduct. Say for instance, lawyers cannot be picked up from
Court Hall or while proceeding to a court to defend a case.
While
discharging his professional duties as an Officer of the Court, a lawyer
may be entitled to veil of protection. But to say that there is general
immunity for all the activities of lawyers inside the Court premises
would tantamount to conferring special privilege upon them.
Within
the campus or elsewhere, lawyers are not above the law.
428. Throwing stones on 19.2.2009
unacceptable.
protection.
by lawyers is most
For such behaviour in the campus lawyers cannot seek
Regarding the incidents on 19.2.2009, a case was
387
registered in Crime No.15/2009 which is now continued to be
investigated
by
CBI
in
R.C.1(S)/2009/CBI/SCB
under
Sec.
147,353,332,450,436,307 IPC and under Sec.3 (1) of TNP(PDL) Act.
429. Recent violence in Dr.Ambedkar Government Law College,
Chennai and conduct of lawyers on 19.2.2009 is a matter of serious
concern. That being so, to accept the contention that the lawyers are
entitled to immunity of all their activities in the Court premises would
be dangerous. Acceptance of such contention would lead to a situation
that lawyers would assume that they could violate the law with
impunity. Rule of law applies to all and lawyers are 'no exception'.
430. Incident: Pelting of stones and Lathicharge: The
Respondent
police
officers
Mr.Ramasubramani-JCP
(North)
and
Mr.Prem Anand Sinha-DCP, Flower Bazaar averred that the crowd
became restive and started shouting at the police and started pelting
stones. Addl. CoP Mr.Viswanathan has also averred that " the mob of
advocates got unruly and started pelting stones at the police present
there, which merely retreated to the police station inside the High
Court premises".
431. Learned senior counsel Dr.Rajeev Dhavan submitted that
mob of lawyers threw stones first protesting against the arrest of
lawyers. The learned senior counsel would further submit that lawyers
388
cannot take law into their own hands and react to the arrest by pelting
stones and lawyers had no reason to use the force under any
circumstances.
432. Per contra, the Petitioners/ lawyers averred that stones
were pelted on all directions and that reports say that the police
started first.
In his affidavit, Mr.Paul Kanagaraj averred that they
learnt that the police and their hired goons in mufti were wearing black
and white uniforms mingled very well with the advocates and they
were the provocateurs.
433. In his reply affidavit dated 14.9.2009, Mr.Paul Kanagaraj
has taken a plea of self defence alleging that the advocates acted only
in self defence since the police abused all the advocates and provoked
the advocates by throwing stones at them.
434. Ms.Vaigai has submitted that pelting of stones was started
first by the police and in any event, it could only be stated that the
lawyers acted in self defence on seeing other lawyers being taken to
custody and such reaction could only be a natural reaction.
435. From watching the videos, we have noticed that after
lawyers were taken to custody, from 15.46 – 15.47, there were lot of
protest by lawyers. At about 15.47 hours, there were stone pelting by
389
lawyers. The stone pelting persisted for about six minutes.
Stone
pelting continued till about 15.53.31 hours. At about 15.53.35 hours,
the police chased the lawyers. For few seconds, thereafter there is no
footage in the video. We have noticed that at every time, the police
chased the lawyers, they went on damage-spree, damaging cars and
motor cycles parked around the premises, particularly belonging to
lawyers.
We have also seen that at about 16.11.58 hours, the
Registrar-Management
Mr.Vijayan,
pacifying
the
lawyers
and
persuaded them not to pelt the stones. From 16.14 to 16.18 hours,
lawyers receded back. At 15.55 hours, few advocates were loudly
saying and asking the police to go out of the campus as their job of
arrest is over. Inspite of the same, stone pelting continued. We have
noticed that at about 15.53.35 hours, there was chasing of lawyers by
the police. At about 16.02.53 hours, one team of police seen entering
into the corridors of the City Civil Court Annexe building.
436. When the additional strength was deployed for taking the
lawyers to custody, we fail to understand as to what was the necessity
for large number of police to be present in steel-helmeted, wielding
lathies. We have also watched police acting in retaliation throwing back
the stones. We are of the view that the police officers in command did
not act tactfully to bring the situation under the control. The Addl. CoP
Mr.Viswanathan, who was then in command does not seem to have
acted to bring the situation under control. We also fail to understand
390
as to what was the need for retaining large number of police
personnel/riot police even after taking the lawyers to custody.
437. In fact, from the call log of the CoP, we have also noticed
that then Registrar-General spoke to CoP (Registrar General Cell No.
9444449933)
at
16.01,
16.03
and
16.06.
Though
details
of
conversation are not known, we think that the Registrar General must
have asked the Commissioner to withdraw the police force. In para
(34) of his counter affidavit CoP averred that ACJ requested him over
phone to withdraw the police force. But the situation did not improve.
On the other hand, the situation only worsened by deploying more
strength.
438. From CD-R2 produced by Addl. CoP Mr.Viswanathan, it was
seen that from 16.14 to 16.18 hours, advocates were receding about
16.23 hours, there was incessant stone pelting from police. At 16.24
hours, there was lathicharge on a private party/Sivakumar who
sustained head injuries due to lathicharge.
The said Sivakumar
appeared before us on 08.10.2009 and reiterated that he sustained
head injuries due to lathicharge.
At about 16.26 hours, advocate
Mr.Mohanakrishnan
towards
pelted
stones
police.
The
advocate
Mr.Mohanakrishnan was not amongst the group of lawyers.
But,
emerging singly, advocate Mr.Mohanakrishnan pelted stones. At 16.26
hours, number of riot police surrounded advocate Mr.Mohanakrishnan
391
and he was brutally beaten causing and heavy bleeding head injuries.
As we pointed out earlier, advocate Mr.Mohanakrishnan, pelted stones
as a single individual and not standing along with the group.
While
advocate Mr.Mohanakrishnan was defiant by pelting stones, the police
could have very well surrounded and taken him to custody. On the
other hand, advocate Mr.Mohanakrishnan was brutally beaten by the
group of Police personnel.
439. In paragraph 10 of the counter affidavit, Additional CoP
Mr.Viswanathan has averred that he told CoP that it would be prudent
to withdraw the police force and that CoP insisted of retaining the
police in the campus. We do not propose to go into the details of the
same, suffice it to note that if Additional CoP thought so, when he was
in command,he could have exercised control over the situation. But,
that was not done.
Seemingly there was no Police officers seen
keeping the personnel within the limits and ordering self-restraint.
440. As we pointed out earlier, from 15.50 to 16.25 hours, there
was persistent stone pelting. The police did not act tactfully and bring
the situation under control. During stone pelting, the police chased the
lawyers number of times and every time, they chased the lawyers, the
police behaved in a worst possible manner. Instead of containing the
violence, the police incited the violence and damaged the vehicles.
392
441. During 16:30 – 17:30 hours, there were two spells of
lathicharge. One at 16:39 hours and another at 17:05 hours.
In his
counter-affidavit, CoP has averred that he has entered the riot area at
17:00 hours.
In Para (37) of his counter-affidavit, CoP averred that
between 16:30 hours and 17:00 hours, he was continuously in touch
with the Registrar-General/ACJ [7 calls] and that he was continuously
coordinating with all top personalities to diffuse the tense situation. In
Para (37), CoP further averred that "..... Once I learnt about fresh tension around 17.00
hours, I immediately rushed from the Esplanade Gate
area towards the riotous scene and personally started
handling the situation"
In their counter-affidavits, Mr.Prem Anand Sinha-DCP (12th Respondent
in W.P.No.3910/2009) and Mr.Sarangan-DCP (11th Respondent in
W.P.No.3910/2009) have also averred that they saw CoP in the place
of occurrence at about 5.00 P.M. and that CoP directed the Police
personnel and Police officers to withdraw and return to B2-Esplanade
Police Station. On the other hand, in his counter-affidavit, Addl. CoP
Mr.Viswanathan averred that CoP came to the High Court Police
Station with additional reinforcement of Armed Police of more than 100
even at 16:30 hours.
442. Statement of CoP that he entered the High Court premises
at 17:00 hours is demonstrably incorrect.
Call logs of Cellphone of
393
CoP [Mobile No.9444465555] indicates that presence of CoP near
Family Court even at 16:43:50 hours. The following call logs of CoP
would show his presence in the scene of occurrence even from
16:43:50 hours.
919444465555
919444449933
Incoming
19-2-09
16:43:50
919444465555
919444449933
Incoming
19-2-09
919444465555
919840983832
Incoming 19-02-09
919444465555
919444414203
Incoming 19-02-09
16:49:17
919444465555
919444414203
919444465555
919444465555
919444596987
10491
35640601166038
16:44:21
76 919444591110
10372
35640601166038
16:47:53
83 919444591110
10372
35640601166038
919444591110
10372
35640601166038
Outgoing 19-02-09
16:49:40 104 919444591110
10372
35640601166038
919444449933
Incoming 19-02-09
16:51:26
73 919444591110
10372
35640601166038
919444449933
Outgoing 19-02-09
16:55:31
86 919444591110
10372
35640601166038
919444465555
919444449933
Incoming 19-02-09
16:57:36 141 919444591110
10372
35640601166038
919444465555
919444802222
35 919444590420
0
919444802222
Roaming- 19-02-09
IC
Incoming 19-02-09
17:00:21
919444465555
17:00:25
35 919444591110
10372
919444465555
919003073527
Incoming
17:29:33
33 919444591110
10392
919444465555
919444444710
Outgoing 19-02-09
17:30:31 177 919444591110
10392
919444465555
911204341925
Incoming 19-02-09
17:33:52
10 919444591110
10372
919444465555
911204341925
17:34:09
10 919444596497
0
919444465555
919944309627
Roaming- 19-02-09
IC
Incoming 19-02-09
17:34:33
19 919444591110
10362
919444465555
919444449933
Incoming 19-02-09
17:36:20 256 919444591110
10403
19-0209
7
2
1049-IBSFamily
Court
1037-High
Court-2
1037-High
Court-2
1037-High
Court-2
CoP in
Family
Court
1037-High
Court-2
1037-High
Court-2
1037-High
Court-2
1037-High
Court-2
35640601166038
1037-High
Court-2
35640601166038 1039-Flower
Bazar-S
35640601166038 1039-Flower
Bazar-S
35640601166038 1037-High
Court-2
35640601166038 1036-Flower
Bazar-E
35640601166038 1040-Port
Trust-3
443. From the photographs produced by the Petitioners, it is
seen that standing alongside with JCP (North) Mr.Ramasubramani
while CoP was talking over Phone, the wrist watch of CoP shows the
time as "16:43 – 16:44 hours". In fact at 16:43 – 16:44 hours, CoP
received two calls from the Registrar-General. Those two calls indicate
the towers "Family Court" and "High Court" respectively.
photographs
and
the
averments
in
the
Call log,
counter-affidavit
of
Mr.Viswanathan-Addl. CoP, in our view, the CoP must have been
present in the scene of occurrence even from 16:43:50 hours. We are
constrained to express our disapproval in filing such false affidavit in
the Court.
By simply saying that around 17:00 hours, he rushed
394
towards riot scene and handled the situation, CoP has not chosen to
taken up the responsibility for extensive lathicharge at 17:05 hours
which we would shortly elaborate.
444. Between 16:30 – 17:30 hours especially during lathicharge
(two spells at 16:39 and 17:05 hours) and while chasing the lawyers,
Policemen took law into their own hands. There was excessive use of
force on the lawyers.
As many as 175 persons - lawyers, litigants,
Court staff and one Hon'ble Judge [Justice A.C.Arumugaperumal
Adityan] sustained injuries.
Policemen chased the lawyers to the
streets and lashed out lathi blows on any one who was in white shirt.
Even the parties [wearing white shirt], one P.A. to the Hon'ble Judges
(who was wearing black Coat] and High Court drivers who were
wearing white, none of them were spared.
Police went on rampage
throwing stones and lashing out lathi blows on the Cars/Two wheelers
parked in the complex. Policemen beat up even women lawyers whom
they came across.
445. Policemen threw stones towards corridors including the
corridors adjacent to the Chief Justice Chamber and smashed the
window panes.
Police entered into the Court room of Small Causes
Court and Family Court within the High Court complex and indulged in
destruction of furnitures, computers and other articles within the Court
premises. There was plenty of blood shed in the inner access roads,
395
along the corridors and also inside the office premises where the police
entered looking out for the lawyers. It was submitted that Police did
not spare the children's creche also from their attack. We have seen
from the Videos, not being satisfied with beating up the lawyers within
the Court premises, the rampaging police ran through the Chambers of
lawyers within the High Court premises and also went to the lawyers
Chambers situated in Lingi Chetty street, Thambu chetty street and
other streets in the vicinity of the High Court. It was submitted that
extensive damages were caused to the lawyers chambers and
furnitures and also library of Law Association, MHAA and Small Causes
Court.
446. Lathicharge continued irrespective of whether lawyer is a
miscreant or not; whether the individual resisted the violence or not.
It was a mindless attack on whomsoever the Police came across – be it
lawyers, litigants, Court staff. Even members of the media were not
spared, when the police chased and lathi-charged the advocates. A
photographer of Tamizh Chudar, two cameramen of Makkal TV and a
photographer of Nakkeeran were among the injured brought to
hospital. Another journalist N.Karthik Prabhu is said to have locked
himself up along with a few Judges in the Small Cause Court to escape
from the police. But some police personnel are said to have knocked
the door and asked them to come out. When Mr.Prabhu and others
came out to reveal their identity, the police hit them. (Source the
Hindu dated 20.02.2009)
396
447.
From
the
Videos,
we
have
seen
Justice
A.C.Arumugaperumal Adityan went into the riot area, the Judge
wearing white shirt and black coat.
One lathi blow fell on Justice
A.C.Arumugaperumal Adityan and the Judge had fallen down. A lady
advocate who was trying to protect him had also fallen down.
We
have also noticed that group of lawyers who tried to prevent the lathi
blows
on
Justice
A.C.Arumugaperumal
Adityan
were
also
brutally attacked. The Hon'ble Judge while taken to ambulance, heard
shouting "stop it, it is a Chartered High Court".
19.2.2009 depicted above, left
The incident on
scores bleeding and thousands
embittered.
448. Dispersal of unlawful assembly:
Commissioner as Executive Magistrate empowered to
exercise Powers:
As per Sec.5 of Tamil Nadu City Police Act, 1888 –
Administration of the Police of the City of Madras is vested with the
Commissioner of Police, Madras.
449. As per Sec.7 of Tamil Nadu City Police Act – Commissioner
is vested with powers as Presidency Magistrate.
Sec. 7 of TNCP Act
reads as under:“7. Commissioner's powers as Magistrate –
The Commissioner shall by virtue of his office be
a Presidency Magistrate, but shall exercise his
397
powers as Magistrate subject to such orders as
may from time to time be issued by the State
Government.
Provided that he shall not exercise any powers
under Chapter XVIII, XX or XXI of the Code of
Criminal Procedure, 1882.”
450. Commissioner of Police of Chennai is also empowered as
the Additional District Magistrate of Chennai under a Government
Order -G.O.Ms.No.736 dated 28.04.1974 issued by Home Department,
Tamil Nadu Government.
451. Learned Senior Counsel Dr.Rajeev Dhavan contended that
when there was serious Law and Order problem which was likely to
breach public peace, to maintain public order, Police can exercise the
power subject to the provisions in Cr.P.C.
Learned Senior Counsel
further contended that the Commissioner as Executive Magistrate had
a statutory right to disperse the assembly if it was unlawful and even if
it was not an unlawful assembly, Police had a statutory right to do so,
if in their opinion the 'unlawful assembly' was likely to cause
disturbance of public peace and conducted itself in such a manner
showing determination not to disperse.
452. Sections 129 and 130 Cr.P.C. give guidelines for dispersal
of unlawful assembly by use of civil Force.
Learned Senior Counsel
398
Dr.Rajeev Dhavan urged that to control the 'unlawful assembly' of
lawyers and to protect the premises and also the Police Station and to
ensure public order within the campus, Police officers acted in
accordance with Secs.129 and 130 Cr.P.C.
Learned Senior Counsel
further submitted that as per Sec.132 Cr.P.C., no person acting in
'Good faith' under Chapter X of Cr.P.C., is liable to be criminally
prosecuted except with the sanction of Central or State Government as
the case may be.
453. Section 129 Cr.P.C. would permit any Executive Magistrate
or Officer-in-Charge of a Police station or in the absence of any Officerin-Charge, any Police officer, not below the rank of Sub-Inspector to
command the unlawful assembly likely to cause a disturbance of the
public peace, to disperse.
If on such command being given the
assembly does not disperse, the Executive Magistrate or the officers
referred to in Sub-section (1) may proceed to disperse such assembly
by force.
The underlying intention of section Section 129 Cr.P.C.
appears to be to disperse the assembly with the minimum amount of
force and as little injury as
possible.
If the assembly shows no
disposition to disperse quietly, force may be employed to disperse it
and it would be permissible to require any male person to render
assistance.
The section, however, emphatically declares that such
male person shall not be an officer or member of the armed forces and
acting as such. The section indicates clearly that in order to disperse
399
the crowd it is permissible to arrest and confine in jail the person
constituting the unlawful assembly. Thereafter, the arrested persons
can be punished according to law. It is only when action taken under
Section 129 fails to disperse the assembly, that an Executive
Magistrate of the highest rank who is present may cause it to be
dispersed by armed forces.
454. According to Police, about 150 lawyers gathered and there
was indiscriminate stone pelting.
Learned Senior Counsel submitted
that the common object of the unlawful assembly is to be deduced
from unruly behaviour of lawyers in pelting stones from all sides and
since lawyers indulged in stone pelting and because of resistance in
execution of law, Police officers arrived at 'subjective satisfaction' to
declare the assembly as "unlawful assembly".
Contending that the
satisfaction of declaring the gathering as 'unlawful assembly' and
quantum of Force to be used has to be left to the Officers, the learned
Senior Counsel submitted that Court cannot substitute its own
Judgment for the subjective satisfaction of the Police officer who was
in the midst of a grave situation and was trying to maintain Law and
Order.
455. Contending that Court must give leeway to Police to assess
'Threat Perception' and not substitute their own discretion for that of
the Police, learned Senior Counsel placed reliance upon (1997) 7 SCC
400
91 [Amitabh Bachan Corporation Ltd., v. Mahila Jagran Manch
wherein the Supreme Court held as under:"The High Court should have realized that the
rights of the organisers and other members of the
society had to be protected if a law and order
situation
was
created
on
account
of
such
agitation, demonstration, etc. If for dealing with
the
threat
to
law
and
order,
the
State
Government was required to use its Police Force
or Security Forces, it was not proper on the part
of the High Court to interfere and give directions
in regard to the type of force to be used because
it is very difficult in such situations to visualize
what shape the demonstration and agitation may
take and the type of law and order situation
which may have to be dealt with. To restrain the
State from using the BSF or the Armed Forces, it
necessary would in certain situations create a
very serious problem as the State would not be
able to deal with it in case it turns ugly. This is
not an area where the Court should exercise its
jurisdiction and issue directions because it is
difficult
to
anticipate
how
develop in course of time.
the
situation
will
This is a function
which must be left to the executive as the
judiciary is not equipped to deal with it."
In the said case, providing security in relation to conducting 'Beauty
Pageant' was the subject matter.
While issuing certain directions to
the State Government, Division Bench of Karnataka High Court
directed that the Police security shall be provided only from the State
401
Police Force and the Government shall not requisition for deployment
of any other force except with the permission of the Court.
In such
facts and circumstances, Supreme Court held that it was not proper on
the part of High Court to interfere and give directions in regard to the
type of Force to be used because it is very difficult in such situations to
vizualize what shape the demonstration may take. The above decision
of the Supreme Court cannot be applied to the case on hand as in the
instant case, the very deployment of Police strength inside the High
Court campus is in question.
456.
Learned
Senior
Counsel
would
further
submit
that
sequence of events the lawyers were involved, the Police officers
evaluated
'Threat
assembly".
Perception'
and
declared
them
as
"unlawful
The learned Senior Counsel submitted that resistance to
carrying out the legal process or to the execution of legal process is
deemed to be illegal and the Police officers cannot said to have acted
in
malafide
warranting
either
Contempt
proceedings
or
other
proceedings. It was argued that earlier, B4-High Court Police Station
was attacked at least two times. Therefore, it necessitated the Police
to act and no malafide could be attributed to the Police.
Learned
Senior Counsel mainly urged that Courts must give police the leeway
to assess the threat perception and not substitute their own views.
402
457. On the other hand, stand of lawyers is that number of
innocent lawyers were taken to custody and when the Policemen were
determined to take custody by force, gathering of lawyers resisted the
arrest of the innocent lawyers.
Mr. S.Prabakaran, President-TNAA,
Ms.Vaigai,learned counsel and Mr.R.C.Paul Kanakaraj, President MHAA
submitted that to arrest the lawyers without any justification, there
were serious encroachment upon the professional discharge of duties
and irked by the conduct of Police, lawyers reacted and such gathering
of lawyers cannot be said to be an 'unlawful assembly'.
458. The learned counsel Ms.Vaigai submitted that lawyers have
acted only in defence raising their protest for illegal arrest of lawyers.
Contending that gathering of lawyers would not be an unlawful
assembly, the learned counsel Ms.Vaigai placed reliance upon the
Judgement 1987 (3) SCC 434 (State of U.P. Vs. Niyamat and
others). That was the case where one Dharampuri was taken to Police
Custody. The accused thereon came to the place with the object of
rescuing Dharampuri from the custody of the constables in which shots
were fired. Considering in the light of right of private defence, the
Hon'ble Supreme Court has held that the action of the accused thereon
at best would only be to rescue Dharampuri from unlawful custody and
that there was no unlawful assembly. The lawyers were taken to
custody. The lawyers who gathered in numbers raised protest and
started pelting stones. We do not propose to go into the question,
403
whether lawyers had any such right of private defence and whether,
the gathering would not constitute an unlawful assembly. Such
questions are to be investigated and examined in Crime No.15/2009
[R.C.No.1(S)/2009/CBI/SCB] now seized up by CBI.
459. By seeing the Videos, we have seen both sides have pelted
stones and trying to get their best.
What would be an unlawful
assembly is defined under Section 141 IPC.
Under this section an
assembly of five or more persons is designated as unlawful assembly,
if the common object of the person composing that assembly is to
overawe by criminal force, or show of criminal force, the Central or
any State Government, or any public servant in the exercise of the
lawful power of such public servant. Whether lawyers taken to custody
are innocent lawyers; whether lawyers could so act resisting the arrest
and whether the gathering of lawyers constitute 'unlawful assembly'
are the points to be investigated in Crime No.15/2009 [R.C.No.1(S)/
2009/CBI/SCB] now seized up by CBI.
Now we are concerned with
whether the Police was justified in deploying the Police Force of various
cadre including TN Commando Force and whether Police acted in 'good
faith' in deploying the Armed Police and indulging in pitched battle.
460. Judicial Review of Threat perception
force by Police:Learned Senior Counsel Dr.Rajeev
and use of
Dhavan submitted that
judicial review on use of force by Police is limited and that Courts
404
cannot substitute its own judgment for the subjective satisfaction of
the police officer who is in the midst of grave situation trying to
maintain law and order. Learned Senior Counsel would further submit
that the test is to see whether the Officer has acted in a good faith
without exercising due care and attention and what a prudent officer
would do in such circumstances. Learned Senior Counsel would further
submit that the criteria for testing the good faith would be:(i)apprehension of breach of peace;
(ii)reasonable due care and attention;
(iii)While so, acting and in good faith, whether there was
any error of judgment. The learned senior counsel
mainly urged that the officers acted with due care and
attention apprehending breach of peace and therefore,
the protection under Section 132 Cr.P.C. is available to
CoP and other officers.
The main plank of argument was that the Court cannot substitute its
view as to apprehension of peace and nature of force to be used to
quell the mob.
461. Section 132 Cr.P.C. gives protection to persons.
Section
132, clauses (b) and (d) provide that no officer acting under Section
131 in good faith and no inferior officer, or soldier, sailor or airman in
the armed forces doing any act in obedience to any order which he
was bound to obey, shall be deemed to have thereby committed an
405
offence. ... This section gives protection to persons against prosecution
for any act purporting to be done under Ss. 129-131, except with the
sanction of the State Government or the Central Government. The
protection conferred by this section will be rendered nugatory if the
onus is to be thrown on persons to prove at the trial that they acted
under the relevant sections. This could not have been the object of the
Legislature when it provided safeguards for the protection of public
servants while they were acting in the discharge of their duties. The
deeming provision of sub-section (2) takes the bona fide acts of the
Executive Magistrate, police officer, officers and members of the armed
forces and persons bona fide acting in compliance with requisition
made under Section 129 or Section 130, out of the category or
offence".
462. In Nandigram's case [Association for Protection of
Democratic Rights v. State of West Bengal and others [2007 (4) CHN
842], a reference has been made as regards PANCHAM LAL's
[Pancham Lal v. Dadan Singh – 1979 Cr. LJ 1018] case, in which it
has been held as follows:"In the case of Pancham Lal, the Patna High Court
has held that the Officer on the spot would be the
best Judge of the degree of force which would be
required to control a particular situation.
It is
quite different from sitting and calculating in a cool
and serene atmosphere of a Court room dissecting
406
the acts and counter- acts alleged by parties. This
observation has been approved by the Supreme
Court in the case of Akhilesh Prasad v. Union
Territory of Mizoram – 1981 CrlLJ 407. Again in
the cases of Empress v. Tucker , Norman &
Thompson
reported
in
Indian
Decisions
(7)
Bombay 28 and D.N. Srivastava, IPS v. Shri
Pathajoy Das and ors – 1983 Crimes 248, it has
been held that the opinion of the policemen as to
what steps would succeed in diffusing the situation
are relevant. "
463. In Nandigram's case, (cited supra), the Division Bench of
Calcutta High Court retained judicial review, but, reiterated the view
that the Officer on the scene is the best judge of the situation and the
quantum of force to handle the same. Learned senior counsel laid
emphasis upon the following observation in para 63 in Nandigram's
case, which reads as follows:".......... Indeed, the officer on the scene would be best
judge as to the amount of force to be used, in a particular
situation. This would not preclude the Court from exercising
its power to judicial review. The aforesaid cases are wholly
irrelevant for the decision in this case.
464. We agree with the submission of the learned senior counsel
Dr.Rajeev Dhavan that power of judicial review as to the actions of the
police is very
limited. We are conscious of the fact that when a
decision regarding use of force by police has to be taken on the spot, it
407
is not possible to weigh with precision and accuracy the minimum force
required to disperse an unlawful assembly.
465. In Nandigram's case, the Court has dealt with police
firing on the agitating farmers protesting against acquisitions lands in
which atleast 14 people died and number of them were injured. Even
in Nandigram's case, the Division Bench of Calcutta High Court has
held that,
"....................... All actions of the police would have to
be justified, to have been lawfully taken under a
procedure established by law.
That procedure would
have to be just fair and reasonable.
Article 21 of the
Constitution makes provision for protection of life and
personal liberty of all persons within the territory of
India."
466. Even though the Police Officers in the field were the best
Judges as to the action to be taken and nature of force to be used,
police action is not beyond the pale of judicial review. A discretionary
power is one which is exercisable by the holder of Authoritative power
on subjective satisfaction of appliance of his intelligentia mind on
evaluation of facts, prevailing circumstances governing the situation
and imminent necessity warranting for operation of his empowerment
as well as his answerability and responsibility to the situation.
The
aforesaid onerous public official responsibility of his, must not be
408
arbitrary, fanciful and influenced by extraneous considerations.
In
matters of discretion like this, the choice must have to be dictated by
public interest, to safeguard law and order as well as public tranquility
and it must not be unprincipled or unreasoned. Reasonableness and
non-arbitrary exercise of discretion is an inbuilt requirement of the law
and the discretion must be exercised reasonably.
467. In our considered view, certainly the action of the police
officers are to be tested on the following questions:➢
Was it necessary to mobilize the additional strength drawing
force from TSF, QRT, SAG, TNCF in the High Court?
➢
Was the Police action justified in deploying large number of
police personnel even during court's working time?
➢
Whether due procedure was followed in disbursal of alleged
unlawful assembly of lawyers?
➢
Whether
the
police
personnel
were
justified
in
indiscriminately lashing out lathi charge on the lawyers and
others irrespective of whether they are miscreants or not?
➢
Whether the police acted in accordance with police standing
orders and whether reasonable force was used?
468. We have already narrated the ugly incident/ fact situation
which persisted for atleast 3 – 4 hours. From CD-R2 produced by Addl.
CoP Mr.Viswanathan, it was seen that the police personnel entered the
409
corridors of Court buildings (firstly one team entering in the City Civil
Court Annex building at 16.02 hours), even when the Courts were
functioning.
The police personnel were not justified in entering the
corridors of Court even while the Courts were functioning. As we
pointed out earlier, Registry has clarified that no permission was given
by the ACJ or Registrar General to the police to enter the premises.
469. The Constitution is based on the Rule of Law. The question
before us is whether the police were justified in entering the Court
buildings even when Courts were functioning and committed excess
and whether there was arbitrary exercise of powers, like any other
incidents or case. In the instant case, it is not a question of mere
police excess.
By committing excess, police have hampered the
administration of Justice. It is really the Majesty of the Institution is in
peril.
We cannot accept the contention of the police that sporadic
stone pelting by lawyers has created serious law and order problem
which justified deploying of additional police force. Having regard to
the gravity of the situation and keeping in view the number of persons
injured and the damage caused to the Court buildings and the
properties and the vehicle, the Court cannot afford to sit by limply,
while those who committed excess go scot-free. Of course, the police
officers are vested with discretion to decide as to the proper action to
be taken and as to the amount of force to be used in particular
situation.
Merely because such discretion is vested with the Officer,
410
the Court cannot fold its hands in despair and declare that the powers
of Judicial review is very limited. If the police acted arbitrarily in an
absolute disregard of constitutionalism and the police standing orders,
they can be challenged by seeking judicial review. So long as the
question arises that the police have committed excess and exceeded
their limits, it is always open to the Court to lift the veil and decide
whether there was good faith and whether the officer has acted with
due care and attention.
470. In the case of Shakila Abdul Gafar Khan v. Vasant
Raghunath Dhoble (2003) 7 SCC 749, while considering the
criminal appeal against the conviction under Section 302 IPC, where
the deceased died of injuries received during the police custody, even
though evidence was not sufficient to convict the police man concerned
under Section 302 IPC, the Supreme Court inter alia issued directions
for payment of compensation to the heirs of the deceased against the
State.
471. Expressing concern over diabolic recurrence of torture,
quoting Abrahim Lincoln, the Supreme Court held as follows:1........ "If you once forfeit the confidence of your
fellow citizens you can never regain their respect
and esteem. It is true that you can fool all the
people some of the time, and some of the people
all the time, but you cannot fool all the people all
411
the time", said Abraham Lincoln. This Court in
Raghbir Singh V. State of Haryana (1980) 3
SCC 70: 1980 SCC (Cri)526:AIR 1980 SC
1087 took note of these immortal observations
(SCC p.72, para 4) while deprecating custodial
torture by the police.
2.......
The Universal Declaration of Human
Rights in 1948 which marked the emergence of a
worldwide trend of protection and guarantee of
certain basic human rights stipulates in Articles 5
that "No one shall be subjected to torture or to
cruel,
inhuman
or
degrading
treatment
or
punishment." Despite this pious declaration, the
crime continues unabated, though every civilized
nation shows its concern and makes efforts for its
eradication.
3.
If
it
is
assuming
alarming
proportions,
nowadays, all around, it is merely on account of
the devilish devices adopted by those at the helm
of affairs who proclaim from rooftops to be the
defenders
of
democracy
and
protectors
of
people's rights and yet do not hesitate
to
condescend behind the screen to let loose their
men in uniform to settle personal scores, feigning
ignorance of what happens and pretending to be
peace-loving puritans and saviours of citizens'
right.
4........ This Court has in a large number of cases
expressed concern at the atrocities perpetuated
412
by
the
protectors
of
law.
Justice
Brandeis'
observations which have become classic are in
the following immortal words;
Government as the omnipotent and omnipresent
teacher teaches the whole people by its example.
If the Government becomes a lawbreaker, it
breeds contempt for law; it invites every man to
become a law unto himself. (In Olmstead V.
United
States
277
US
438:72L
Ed
944
(1928), US at P.485, quoted in Map V. Ohio
367 US 643:6L Ed 2d 1081 (1961), US at
p.659.)
5.The
diabolic
recurrence
of
police
torture
resulting in a terrible scare in the minds of
common citizens that their lives and liberty are
under a new and unwarranted peril because the
guardians of law destroy the human rights by
custodial violence and torture, invariably resulting
in death.
The vulnerability of human rights
assumes a traumatic torture when functionaries
of the State whose paramount duty is to protect
the citizens and not to commit gruesome offences
against them, in reality perpetrate them. The
concern which was shown in Raghbir Singh case
[RAGHBIR SINGH v. STATE OF HARYANA –
(1980) 3 SCC 70] more than two decades back
seems to have fallen on deaf ears and the
situation does not seem to be showing any
noticeable change. The anguish expressed in
Gauri Shanker Sharma v. State of U.P – 1990
Supp SCC 565, Bhagwan Singh v. State of Punjab
413
– (1992) 3 SCC 249, Nilabati Behera v. State of
Orissa – (1993) 2 SCC 746, Pratul Kumar Sinha
v. State of Bihar – 1994 Supp (3) SCC 100,
Kewal Pati v. State of U.P.- (1995) 3 SCC 600,
Inder Singh v. State of Punjab – (1995) 3 SCC
702, State of
M.P. v. Shyamsunder Trivedi –
(1995) 4 SCC 262 and by now a celebrated
decision in D.K.Basu v. State of W.B. - (1997) 1
SCC 416 seems to have caused not even any
softening attitude to the inhuman approach in
dealing with persons in custody. "
472. The right to life and liberty is guaranteed under Article 21
of the Constitution of India. Right to life and liberty have been given
unique place in the scheme of the Indian Constitution. Fundamental
Rights are so important that they occupy unique place in all civilized
societies. Therefore, any apprehension of the fundamental rights must
be strictly in conformity with the Law validly enacted by a competent
legislature. We are of the view, the action of the police in using the
force to disburse unlawful assembly and the order of lathi charge
cannot be said to be beyond the pale of judicial review.
473. As we pointed out earlier, the police strength was mobilised
from TSP, QRT, SAG and TNCF. That apart, number of officers in the
ranking of JCs, DCs, ADCs and ACs and Inspector of Sub Inspectors
were also drawn. As pointed out earlier, as per the Man Power Chart,
414
the total strength mobilised was 147+118+26=291 apart from the
strength of 130 already in High Court.
When the acts of police
affected the fundamental rights, injuring many lawyers, litigants and
courts staff, apart from causing damage to the court buildings and
properties, it is for the Court to go into the decision making process
who were responsible for such excess. It cannot be said that the
nature of force to be used was within the discretion of the police
officers which is beyond the pale of judicial review. The main question
falling for our consideration is whether the police acted illegally,
unjustifiably affecting the Majesty of the Institution and thereby
committed contempt of Court. Let us consider the question of threat
perception on which the police try to justify using the force.
474. We proceed to consider the same on the following aspects.
➢
Alleged threat perception and necessity for deployment
of police personnel for disbursal of unlawful assembly.
➢
Whether the procedure contemplated under the police
standing orders for disbursal of unlawful assembly was
duly complied with before ordering lathi charge.
➢
Whether unreasonableness vitiates the action of the
police.
475. Learned senior counsel Dr.Rajeev Dhavan submitted that
from 2001 to 2009, lawyers were involved in number of cases and the
415
Court cannot ignore the political activities in the campus. Submitting
that the court will have to come to terms with the root cause, the
learned senior counsel contended that the action on 19.2.2009 has to
be viewed in the context of such political activities of a group of
lawyers which is in total violation of the directions of the Constitution
Bench in Harish Uppal's case. Learned senior counsel would further
submit that while examining the acts of the police, the Court has to
keep in view the directions passed by the First Bench in W.P.No. 7646
of 2006. It was further submitted that in view of large number of cases
registered against the lawyers and their past conduct, the police
officers had threat perception and that the threat perception is based
on ample materials. Learned senior counsel would further submit that
the egg throwing incident on Dr.Swamy on 17.2.2009 has further
contributed to the threat perception.
476. It was mainly argued that the acts of the police on
19.2.2009 cannot be examined in isolation and has to be read in the
background of defiant conduct of the lawyers.
We are unable to
accept the above contention that the incident on 19.2.2009 has to be
viewed in the background of number of cases registered against the
lawyers in the past. As we pointed out earlier, the lawyers resumed
work on 19.2.2009 and courts were functioning normally from
morning. Earlier acts of lawyers or cases registered against them
cannot colour the incident on 19.2.2009. In our considered view,
416
earlier conduct of lawyers cannot justify the police excess on
19.2.2009.
Most of the cases registered against lawyers are either
under investigation or pending trial. In our considered view, the past
conduct of the lawyers cannot be said to be a reasonable threat
perception to deploy large number of Police personnel and lathi
charge.
477. The learned Senior Counsel Dr.Rajeev Dhavan submitted
that in view of serious law and order problem and brewing tension to
avoid deterioration of the situation, Police was left with no other option
but use the required minimum force to maintain order and to disperse
unlawful assembly. The learned senior counsel further submitted that
the reasonable apprehension of Police could be seen from subsequent
developments of setting fire to B-4 Police Station. Setting fire to Police
Station was post lathi charge. That cannot be the test for chasing of
lawyers and use of force even from 15:53 hours.
478. The boycott of courts from 29.1.2009 was to express
solidarity with the victims of Anti Tamil Genocide by Srilankan
Government and demanding Indian Government to stop the genocide
in Sri Lanka. There was an unseemly incident on 17.2.2009 regarding
which the advocates came to surrender in B4-High Court Police Station
on
19.2.2009
insisting
Subramaniam Swamy.
of
registration
of
a
case
against
Dr.
In our considered view, there was no
417
justification to deploy posse of policemen when a group of lawyers
came to surrender. The lawyers were forcibly taken into custody. Even
after taking the lawyers to custody, there was no need for retaining
posse of policemen in B4-High Court Police Station situated within the
campus.
479. In his counter affidavit, the Addl. CoP Mr.Viswanathan has
averred that they have suggested to the CoP that it would be prudent
to withdraw the police force. Retention of the police force even after
the arrest of the lawyers seems to be against the suggestion of
Mr.Viswanathan and other officers. Atleast when there was stone
pelting from all directions, between 15.47 and 15.53 hours, the police
force could have been withdrawn and taken outside the High Court
premise keeping in view the functioning of the courts. By deploying
and retaining the police personnel, police officers have not acted in
good faith and have not exercised due care and attention. On the other
hand by throwing back stones and by retaliating Police acted as
provocateurs.
480. Lathicharge – Whether PSO was followed
Whether reasonable force was used :After the lawyers were taken to custody, from 15:47 hours
there was a protest. At 15:49:49 hours, stone pelting by the lawyers
by taking position in the corridors. For about five minutes, there were
stone pelting from all directions and it was a free fight both for lawyers
and the Police.
At about 15:53:35 hours, there was first chasing of
418
lawyers.
According to lawyers, there was lathicharge even at that
time. From the Video, it could not be ascertained whether there was
lathicharge at that point of time.
From the CD-R2 produced by
Mr.Viswanathan-Addl. CoP, it was seen that first time the Police
officers went inside the City Civil Court Annexe building at 16:02:53
hours.
As we have pointed out earlier, there was lathicharge on
private party Mr.Sivakumar and Advocate Mr.Mohanakrishnan at 16:24
and 16:26 hours respectively. At 16:39:29 hours, there was vigorous
chasing of lawyers by the Police.
At 17:05 hours teargas was fired
followed by lathicharge.
481. In his counter-affidavit Mr.Prem Anand Sinha-DCP has
averred that in consultation with Addl. CoP Mr.Viswanathan and JCP
(North) Mr.Ramasubramani, ordered the Police personnel to make
"lathicharge" to disperse the unlawful assembly and to return back
after the chase.
Mr.Viswanathan, Addl. CoP has denied any such
consultation. In the Videos, we have seen that lawyers are standing
on the other side and pelting stones towards the Police which was
quickly thrown back by the Police towards the lawyers. As such we do
not find any declaration declaring the gathering as 'unlawful assembly'
nor any warning was given prior to unlawful assembly. At about 17:02
– 17:03 hours, lawyers in huge gathering showing hand signal "not to
pelt stones" were found proceeding towards the Police. In the CD-R2
produced by Mr.Viswanathan, we have also seen some of the
419
Chowkidars with official headgears seen coming along side lawyers
indicating arrival of some of the Hon'ble Judges. But there seem to be
no relenting by the Police. Even at that time there was incessant stone
pelting by the Police and chasing followed by lathicharge. Only signal
before chasing, was the mass pelting of stones by the Police towards
lawyers and chasing them and lashing out lathi blows.
In Para (37) of
his counter-affidavit, CoP averred that "having learnt about fresh
tension around 17.00
hours,
he immediately rushed from
the
Esplanade Gate area towards the riotous scene and personally started
handling the situation".
As we pointed out earlier, at 17:05 hours
there was another spell of lathicharge. Before chasing the lawyers and
lashing out blows [17:05:38 hours] between 17:03 – 17:05:34 hours,
there was incessant stone pelting of stones by the Police.
482. In the CD-R1 produced by the Respondents, the slides
showing
arrival
of
Judges
with
their
Chowkidars
and
lawyers
proceeding towards the Police showing hands "not to pelt stones"
were edited.
Only from the CD-R2 produced by Mr.Viswanathan,
Addl. CoP, we were able to see that Advocates and couple of
Chowkidars are marching towards the Police persuading them with
hand signal 'not to pelt stones'. The response from the Police was only
mass pelting of stones between 17:03 – 17:05:34 hours followed by
lathicharge.
As we have pointed out earlier, from the call logs of
Commissioner, CoP was very much available inside the High Court
420
premises even from 16:43:50 hours.
In his counter-affidavit, CoP has
not averred anything regarding the declaration of unlawful assembly at
that spell of lathicharge (17:05 hours).
483. Dr. Rajeev Dhavan, the learned Senior Counsel submitted
dealing with preservation of peace under Tamil Nadu Police Standing
Orders [PSO] 698, it is duty of the Police to collect information about
the movement and that failure in their performance of their duty will
be severely noticed and the Police have acted in accordance with Police
Standing Orders in taking precautionary measures and preventive
actions
and
Police
officers
precautionary measures.
cannot
be
faulted
for
taking
such
The main plank of argument is that Police
acted in accordance with Police Standing Orders.
484. Chapter X of Cr.P.C. lays down the
procedure that is
required to be followed in the dispersal of unlawful assemblies either
by use of Civil Force or Armed Force. Sec.129 Cr.P.C. uses the word
'Force in a broad sense' and in order to regulate the use of such Force
and the manner in which should be used Tamil Nadu Government
issued Police Standing Orders [PSO].
PSO 699 stipulates preventive
action and PSO 703 deals with dispersal of unlawful assembly.
485. The learned Senior Counsel has drawn our attention to
PSO 698(2) & (5); 699 (1) and PSO 700 (9) which read as under:-
421
"PSO 698 – Watching for developments:- (2)
One of the most important duties of the Police is the
collection of information about every movement,
state of feeling, dispute or incident which may lead to
breach of peace and the communication of such
information to the District Collector.
Failure in the
performance of this duty will be severely noticed.
(5) But, generally speaking when tension is really
acute, experienceis very definitely in favour of taking
excessive rather than inadequate precautions, since
these tend to inspire confidence in the weaker party
and caution in the stronger one. They also tend to
check the ardor of the inflammatory elements on
both sides.
"PSO 699 Preventive Action:- (1) When a breach
of the peace is anticipated, the Police should take
timely
action
under
the
preventive
sections
of
Chapter XI and XII of the Criminal Procedure Code,
and under the provisions of Sections 30 and 30A of
the Police Act, 1861 (Act V of 1861).
First report
made to the Magistrates with a view to action being
taken under Sections 144 and 145 of the Criminal
Procedure
Code
should
be
made
on
the
First
Information Report form and subsequent reports on
case diary forms, as in ordinary cases under the
Indian Penal Code and copies sent to the superior
Police Officers concerned.
"PSO 700 (9) When clashes occur:- If a clash
occurs immediate and vigorous action may nip the
trouble in the bud and prevent it from spreading. If
it is possible to make arrests, these will have a good
effect.
Where the clash take the form of mob
422
fighting, there should be no hesitation to disperse by
force or to resort to firing, if life is seriously
endangered, the provisions of the law in their
respects being, of course, observed. Procrastinating
and feeble parleying for long periods often lead to
the heightening of tension and worsening of the
situation.
This is frequently so because lack of
prompt firmness and decision is interpreted as
weakness
and
vacillation
on
the
part
of
the
authorities, which it frequently actually is."
486. PSO 703 stipulates standing orders for dispersal of
unlawful assembly in consonance with Sections 129 and 130 Cr.P.C.
The Police draws its authority to declare and disperse unlawful
assemblies. The relevant clauses in PSO 703 (1) (a) (b) (g) & (h)
reads as under:"(1)(a) It is the bounden duty of the Police to prevent
cognizable offences as per Section 149 Cr.P.C. which is as
follows:
"Every Police Officer may interpose for the purpose of
preventing and shall to the best of his ability, prevent,
the commission of any cognizable offence".
(b) The police draws its authority to declare and disperse
unlawful assemblies from Section 129 Cr.P.C.,
"Any Executive Magistrate or Officer in-charge of a
Police Station or, in the absence of such Officer incharge, any Police Officer not below the rank of a SubInspector, may command any unlawful assembly, or any
assembly of five or more persons likely to cause
disturbance of the police peace, to disperse, and it shall
423
there upon be the duty of the members of such
assembly to disperse accordingly.
If, upon being so commanded, any such assembly does
not disperse, or if, without being so commanded, it
conducts itself in such a manner as to show a
determination not to disperse, any Executive Magistrate
or Police Officer referred to in Sub-section (1), may
proceed to disperse such assembly by force, and may
require assistance of any male person, not being an
officer or member of the armed forces and acting as
such, for the purpose of dispersing such assembly and,
if necessary, arresting and confining the persons who
form part of it in order to disperse such assembly or
that they may be punished according to law."
...........
(g) The procedure to be followed in dealing with unlawful
assemblies is laid down in the "Drill and Training Manual"
Section 123-Drill instruction for dealing with crowds,
riotous, mobs etc. and in section 126-Mob, firing small
parties of Police.
(h) All Police Officers should be fully conversant with the
above noted provisions of law which enumerate their
rights
and
responsibilities
in
dealing
with
unlawful
assemblies and with the drill procedure as laid down in
the Drill and Training Manual.
487. PSO 702 (2) (3) & (4) elaborates upon Standing orders
for dispersal of unlawful assembly and use of minimum necessary
force. PSO 703 (2), (3) and (4) read as under:"2 (a) When a Magistrate is present, an assembly
424
shall not be called upon to disperse nor shall
force be used to disperse it without the order of
such Magistrate; provided that if a gazetted Police
Officer
is
present
Magistrate,
such
independently
in
in
the
Police
ordering
absence
Officer
an
of
the
may
act
assembly
to
disperse.
(b) If an Executive Magistrate is present at the
spot, it shall be his responsibility to declares the
mob unlawful and direct them to disperse. If the
members
of
the
unlawful
assembly
do
not
disperse the Executive Magistrate shall direct the
Police to use force that is necessary for the
purpose. The nature of force to be used. Tear
gas, lathi-charge or water jet and the method and
quantum of force to be used should be decided by
the senior most Police Officer present on the
spot. Thereupon the Executive Magistrate shall
not interfere with the physical operation of mob
dispersal.
(c) In the absence of an Executive Magistrate,
the senior most Police Officer not below the rank
of Sub-Inspector will carry out the functions of
the Executive Magistrate in addition to his own.
(d) If any Police Officer below the rank of a SubInspector is faced with a mob, he shall exercise
his right of private defence, taking particular care
not to exceed his rights.
(e) All commands to the Police are to be given by
Officer-in-Command of the party.
(f) The main principle to be observed is that the
minimum necessary force to achieve the desired
425
object should be used regulating it according to
the circumstances of each case. The object of the
use of force is to prevent disturbance of the
peace or to disperse an assembly which threatens
such disturbances and has either refused to
disperse
or
shows
a
determination
not
to
disperse; no punitive or repressive considerations
being permitted to become operative while this is
being done.
(g) Having decided on the kind of force to be
used the Officer-in-charge of the Police will be
responsible for deciding as to the exact amount of
the force to be used, the manner of using it and
for setting the details of the operations connected
with the use of force the Police Officer should, of
course, bear in mind the principle that no force
more than is necessary should be used.
(h) If the members of the unlawful assembly do
not disperse, the Executive Magistrate or the
senior most Police Officer present in the absence
of the Executive Magistrate shall direct the Police
to use force, that is necessary for the purpose.
The nature of force to be used, tear gas, lathi
cane charge or water jet and the method of
quantum of force to be used should be decided by
the senior most Police Officer present on the
spot.
(i) If the crowd refuses to follow the lawful
instructions to disperse, the riot flag should be
raised, the attention of the mob drawn through a
bugle call with long blast and a clear warning that
force would be used to disperse them will be
426
given through megaphone. The operation will
commence if the mob refuses to head to the
warning.
(j) Officers commanding police parties will on
every occasion when employed in the suppression
of a riot of enforcement of the law, ensure that
the fullest warning is given to the mob in a clear
and distinct manner before any order is given to
use tear gas or lathi/cane or fire arms and to use
the most effectful means to explain before hand
to the people opposed to them, in the event of
the Police party ordered to fire that the fire will
be effective.
(k) If any or all these method fail to disperse the
mob and if in his opinion nothing short of firing
can disperse the mob, the Executive Magistrate
will order fire to be opened. Again the manner in
which firing is to be directed against the mob,
type of ammunition to be used and the method of
firing are the individual responsibilities of the
senior most Police Officer.
3. If the crowd becomes defiant tear gas should
be used effectively. If this becomes in fractious
then lathi can charge can be made. If the crowd
is still defiant resort, may be had to the use of
fire arms".
4. (a) It is not necessary that on every occasion
tear gas should be used.
Use of tear gas will
depend on the availability of a sufficient stock of
gas ammunition, wind direction, nature of the
neighbourhood and availability of escape routes
for the mob. On no account should gas be used
427
in poor visibility especially between sunset and
sunrise, and inside buildings or when the wind
direction is such that the smoke will affect the
Police party or innocent people in the vicinity or
when the mob is too close to the Policy party.
.........
(e) If water jets or tear gas fail to disperse the
mob,
lathi
cane
charge
should
be
ordered.
Lathi/Cane charges should not be attempted if
the strength of the Police force is not adequate to
create an effect on the crowd and the crowd is
likely to overhelm the Police party easily.
personnel
engaged
in
the
lathi/cane
The
charge
should be under the proper control and the
charging should cease as soon as the desired
objective is achieved. The procedure laid down in
the Drill and Training Manual will be followed.
Care should be taken to prevent the lathi/cane
sections getting separated from the main party
and the Commander."
488. As per PSO 703 (2) (b) if Executive Magistrate is present
at the spot, it shall be his responsibility to declare the mob unlawful
and direct them to disperse. As we pointed out earlier, we do not find
any such declaration of gathering as 'unlawful assembly' before
ordering lathicharge.
In Para (38) of the counter-affidavit, CoP
averred that after B4-High Court Police Station was set on fire by the
Advocates and when stone pelting continued, at 17:45 hours in
consultation with the other Officers present on the spot, a collective
428
decision was taken to disperse the unlawful assembly which indulged
in stone pelting preventing the arrival of Fire tender vehicle.
Thereafter, there was chasing of lawyers followed by lathicharge.
Other than the above, we do not find any other averments declaring
the gathering as 'unlawful assembly'.
489.
For the earlier spells of lathicharge, there was clear
violation of the requirement of PSO 703 (2) (b) declaring the gathering
as unlawful assembly.
None of the recorded Videos show that any
prior warning was given. Absolutely, there was no order declaring it as
'unlawful assembly' or warning that Police is going to resort to
lathicharge. The procedures stipulated in Police Standing Orders was
neither followed nor reasonable Force was used to disperse the
gathering. It was mindless pelting of stones by the Police followed by
lathicharge.
490. As per PSO 703 (2) (b) – "Executive Magistrate to direct
the Police to use force necessary for the purpose and nature of force to
be used".
assemblies
The procedure to be followed in dealing with the unlawful
is laid down in Drill and Training Manual and the
procedure thereon will have to be followed. As per PSO 703 (4) (e)
– "care should be taken to prevent the lathi/cane sections separated
from the main party and the Commander. Seemingly, no one was in
command leading lathi/cane sections. What we have seen in the Video
429
is each one of Police personnel of lathi/cane sections going in their own
way and indulging the mindless attack of lawyers, passersby and who
came on their way.
491. Excepting the mere allegations that the mob was declared
'unlawful', we could not see anything declaring the mob as an 'unlawful
assembly'.
As per PSO 703 (2) (j) – "Officers commanding Police
parties will on every occasion when employed in the suppression of a
riot, ensure that the fullest warning is given to the mob in a clear and
distinct manner before any order is given to use teargas or
lathicharge". Absolutely, no such warning seemed to have been given
before ordering lathicharge.
492. Police violence:The degree of force which may be lawfully used in the
suppression of an unlawful assembly depends on the nature of such
assembly, for the force used must always be moderated and
proportioned to the circumstances of the case and to the end to be
obtained.
But in the incident on 19.2.2009, Police used excessive
force in clear violation of PSO 703. By pelting stones lawyers took the
law into their own hands.
Needless for us to state that lawyers
behaved in a most unacceptable manner, but what was the reaction of
the Police.
430
493. No matter how rude or unruly the lawyers were, the Police
should not have used extreme force. The riot Police personnel were all
steel-helmeted and were having riot shields.
Pelting stones by the
lawyers though reprehensible, would have hardly affected the Police as
they were steel-helmeted.
But the Police quickly turned back the
stones that came their way at the lawyers and matched the lawyers in
their lawlessness. Hardly any Police officer could be seen keep their
men under restraint. The most notorious is the actions of the Police
going on rampage in the entire premises. Claim of Police that lawyers
were rioting would be of no justification for letting loose violence by
the Police in the entire campus. Police smashed the glass doors, tube
lights and extensive damages to the Courts, Cars/two wheelers and
whatever they could hit with lathi.
494. There are some widely known cases of Police excess. But
there are thousands of incidents that never received attention.
The
incident on 19.2.2009 would be remembered for long as a widely
known case of Police excess. In the confrontation between Police and
Lawyers,
in
our
considered
view,
Police
used
wrongful,
disproportionate, unlawful and excessive force against the lawyers,
litigants, staff and whoever came on their way. The act of the Police
attacking lawyers whether they were miscreants or not was a blatant
disregard of Police Standing orders. Ofcourse, there was also rioting
431
by handful of lawyers. But the initial reaction by the lawyers can be no
argument for the brute force used by the Police. Ofcourse setting fire
to the Police Station is a grave offence.
But setting fire to Police
Station was at 5.45 P.M. after number of spells of lathicharge. Lashing
out lathi blows and having sustained injuries, the angered mob set fire
to the Police Station.
The wrath of lawyers was against the Police.
Subsequent events after 5.45 P.M. may not justify the Police excess
between 4.00 – 5.30 P.M. Police used teargas, lathicharge to disperse
groups of lawyer who were unarmed (though disobedient even
disorderly).
Police violence led to the extreme situation like break
down of law and order in the campus ultimately damage to the Court
properties and also closure of Courts. It was mindless attack by the
Police on any one who came across and vehicles parked in the campus.
Police have ransacked the court buildings and even went up to the
Chief Justice chamber and beaten up the lawyers who assembled in
the verandah to complain to the Chief Justice. No one was spared.
495. No higher officer/Commando seemed to be in control of the
situation.
No officer was seen preventing the Police personnel from
pelting the stones. No instructions seem to have been given for selfrestraint during lathicharge.
No efforts were taken to see that
lathi/cane sections do not separate from the main party and the
commander.
There is clear violation of directions in PSO 703 for
dispersal of unlawful assembly.
432
496. Coming to the question of manner the injured were treated
and taken to the hospital.
Even while taking to the Ambulance, near
the Ambulance some of the injured lawyers were mercilessly beaten
even though some of them were already profusely bleeding. Some of
the injured were seen forcibly dragged and placed in Ambulance.
497. As per Police Standing Orders and instructions, while using
lathi/cane sections, as far as possible, the blows should be below the
knee. But in clear violation of directions in Police Standing Orders, the
riot police inflicted most of the lathi blows on the head as in seen from
the Accident Registers. While there can be no possible justification for
the assembly of lawyers resorting to stone throwing, we have no
hesitation in coming to the conclusion that there was excessive use of
force by the Police. There was clear violation of PSO 703 (2) (f) as
to use of minimum necessary force.
498. Responsibility of Police:Police are subject to the same crowd psychology as any other
group of armed men and women, when in large confrontational groups
in encounters whose outcome is uncertain, when in the grip of anger,
or strong emotion.
However, Police carrying deadly weapons and a
privileged authority and so have a special responsibility to keep control
of themselves and their fellow officers especially since a breach in
relations between Police and Civilians can make their jobs impossible
433
and lead to more widespread violence.
499. Any action of the Government or its Officers must be free
from arbitrariness
and reasonableness.
In the case of Maneka
Gandhi v. Union of India and another [MANU/SC/0133/1978],
it has been clearly held as follows:
"120. To sum up, 'procedure' in Article 21 means fair, not
formal procedure 'Law' is reasonable law, not any
enacted piece."
500. The aforesaid proposition has been reiterated by the
Supreme Court in the case of Olga Tellis and others v. Bombay
Municipal Corporation and others [MANU/SC/0039/1985] as
follows:"39. It is far too well-settled to admit of any
argument that the procedure prescribed by law
for the deprivation of the right conferred by
Article 21 must be fair, just and reasonable [See
E.P.Royappa
v.
State
of
Tamil
Nadu
MANU/SC/0380/1973; Menaka Gandhi v. Union of
India MANU/SC/0133/1978; M.H.Hoskot v. State
of Maharashtra MANU/SC/0119/1978; Sunil Batra
v. Delhi Administration MANU/SC/0184/1978; Sita
Ram
v.
State
of
U.P
MANU/SC/0244/1979;
Hussainara Khatoon I v. Home Secretary, State of
Bihar, Patna MANU/SC/0121/1979; Hussainara
Khatoon II v. Home Secretary, State of Nihar,
434
Patna MANU/SC/0119/1979; Sunil Batra II v.
Delhi Administration MANU/SC/0184/1978; Jolly
George
Verghese
v.
Bank
of
Cochin
MANU/SC/0014/1980; Kasturi Lal Lakshmi Reddy
v.
State
of
Jammu
&
Kashmir
MANU/SC/0079/1980; and Francis Coralie Mullin
v.
Administrator,
Union
Territory
of
Delhi
MANU/SC/0517/1981.
40. Just as a male fide act has no existence in the
eye of law, even so, unreasonableness vitiates
law and procedure alike. It is thereafter essential
that the procedure prescribed by law for depriving
a person of his fundamental right, in this case the
right to life, must conform to the norms of justice
and fair play. Procedure, which is unjust or unfair
in the circumstances of a case, attracts the vice of
unreasonableness, thereby vitiating the law which
prescribes that procedure and consequently, the
action taken under it.
Any action taken by a
public authority which is invested with statutory
powers has, therefore, to be tested by the
application of two standards. The action must be
within the scope of the authority conferred by law
and secondly, it must be reasonable.
If any
action within the scope of the authority conferred
by law, is found to be unreasonable, it must mean
that the procedure established by law made which
that action is taken is itself unreasonable.
The
substance of the law cannot be divorced from the
procedure which it prescribes for how reasonable
the law is depends upon how fair is the procedure
prescribed by it. Sir Raymond Evershed says that
435
'The Influence of Remedies on Right' (Current
Legal Problems 1953, Volume 6.).
"from the
point of view of the ordinary citizen, it is the
procedure that will most strongly weigh with him.
He
will
tend
to
from
his
judgment
of
the
excellence or otherwise of the legal system from
his personal knowledge and experience in seeing
the legalmachine at work".
Therefore, "He that
takes the procedure sword shall perish with the
sword".
Per Frankfuter J. In Vitarelli v. Seaton
1959 (3) Law ED 2d 1012.
41. Justice K.K.Mathew points out in his article on
'The Welfare State, Rule of Law and Natural
Justice", which is to be found in his book
'Democracy, Equality and Freedom', that there is
'substantial agreement in justice thought that the
great purpose of the rule of law notice is the
protection of
the
individual against
arbitrary
exercise of power wherever it is found'. Adopting
that formulation.
Bhagwati, J. Speaking for the
Court, observed in Ramana Dayaram Shetty v.
International
Airport
Authority
of
India
MANU/SC/0048/1979, that it is "unthinkable that
in a democracy governed by the rule of law, the
executive Government or of its officers should
posses arbitrary power over the interests of the
individual.
Every
action
of
the
Executive
Government must be informed with reason and
should be free arbitrariness.
That is the very
essence of the rule of law and its bare minimal
requirement."
436
501. Power of the Police under Police Standing Orders cannot be
dissociated from the procedure which it prescribes for reasonable
exercise of power in dispersal of unlawful assembly. Learned Senior
Counsel Mr. Rajeev Dhavan submitted that from the consequences of
Police action viz., photographs of injured lawyers cannot be taken as
basis for testing the reasonableness. When there is clear violation of
procedure and fundamental rights, the consequences of arbitrariness
cannot be ignored.
502. The independence and impartiality of the judiciary is one of
the Hallmark of a judicial set up.
Courts are the Institutions by which
justice is rendered to the people.
By setting ablaze to the Police
Station and indulging in stone pelting ofcourse, lawyers behaved in a
most unacceptable manner. The Courts are not for the individual
Judges or lawyers; but the Courts are for rendering administration of
justice.
503. If the judiciary has to perform its duties and functions in a
fair and free manner, the dignity and the authority of the Courts has to
be respected and maintained at all stages and by all concerned, failing
which the very constitutional scheme and public faith in the judiciary
runs the risk of being lost. The cause is of the public. It is this Police,
Justice delivery system depends as one of the important wing in the
437
administration of criminal justice. Police who are supposed to be the
protectors of the Institution, barged into the Court rooms damaging
the Court properties. Police went berserk in the Court premises and
beat any one they came across and smashing the vehicles and the
furious attack venting their anger.
The violent acts of the Police
undermined the Majesty of the Institution.
Any time a Police officer
abuses his or her authority and inflicts undue suffering on any person,
it is an affront, not only to the victim of the pain but to society as a
whole.
In this case, it is an affront to judiciary.
Even slightest
disrespect to the judicial system or its Constituents may lead to
disastrous effect annihilating the very fabric of Rule of law.
504. Contempt of Court:In a democratic society, the three organisation of Government
namely the Executive, the Legislative and the Judiciary are expected to
perform their function within their limitations for the benefit of the
public.
No one organisation is expected to interfere with the
functioning of the other.
Though Judiciary is entrusted with the
function of Administration of Justice, it cannot claim superiority over
other two organisations and Judiciary has been given all the
requirements needed for upholding the majesty of law particularly
when it has neither the power of purse nor power of the Police.
So
through contempt proceedings the Judiciary performs its function of
proper Administration of Justice and safeguards the Rule of law. It is
438
fairly well settled that Contempt jurisdiction is extraordinary in
character, should not be used for the personal protection of the
Judges.
The jurisdiction is applied against any authority or person
whenever there is any kind of interference in the Administration of
Justice and to maintain supremacy of law.
505. As per Article 215 of Constitution every High Court shall be
a Court of Record and shall have all powers of such a Court including
the power to punish for contempt of itself.
While much of the
contempt power of the High Courts and Supreme Court has been
codified by the Contempt of Courts Act 1971, there remains a reservoir
of inherent power which draws from them being Courts of Record,
which has not been trammelled by Statute.
506. As per Sec.23 of Contempt of Courts Act, 1971 – Supreme
Court and High Courts are empowered to make Rules.
Section 23
reads as under:-
"23. Power of Supreme Court and High
Courts to make rules. - The Supreme Court or,
as the case may be, any High Court, may make
rules, not inconsistent with the provisions of this
Act, providing for any matter relating to its
procedure."
439
507. Referring to Rule making power of Supreme Court and High
Courts, in (1997) 3 SCC 11 [High Court of Judicature at
Allahabad v. Raj Kishore Yadav], the Supreme Court held as
follows:"Contempt
jurisdiction
is
an
independent
jurisdiction of original nature whether emanating
from the Contempt of Courts Act or under Article
215 of the Constitution of India.
How such
original jurisdiction can be exercised is a matter
which
can
legitimately
be
governed
by
the
relevant Rules framed by the High Court on its
administrative side by exercising its rule-making
power under Section 23 of the Act or under its
general rule-making power flowing from the
relevant provisions of the constitutional scheme
as seen earlier."
508. Delhi Judicial Service Association Tis Hazari Court v.
State of Gujarat, (1991) 4 SCC 406 : 1991 Cri LJ 3086, facts are
too well known to the legal world and need not be recapitulated in
detail. It was a case where a Chief Judicial Magistrate was arrested,
assaulted and kept in wrongful detention after having been taken to a
Police Station.
The Supreme Court held that "a Court of justice
without power to vindicate its own dignity, to enforce obedience to its
mandates, to protect its officers, or to shield those who are entrusted
to its care, would be an anomaly which could not be permitted to exist
in any civilised community."
440
509. Before we proceed to consider the question of contempt,
we would like to remind ourselves the observation of the Supreme
Court in the case of Special Reference [1965 (1) SCR 413]
"The
power to punish for contempt large as it is, must always be exercised
cautiously, wisely and with circumspection. Frequent or indiscriminate
use of this power in anger or irritation would not help to sustain the
dignity of the Court, but may sometimes affect it adversely".
510. Contempt of Court - Civil Contempt:
On 18.3.2009, Court has passed an order directing the State
Government to initiate disciplinary proceedings against Addl. CoP
Mr.Viswanathan and JCP (North) Mr.Ramasubramani and that they
should be placed under suspension.
But the officers were not
immediately placed under suspension. Onbehalf of the lawyers, it was
contended that order of the Court [18.3.2009] was not obeyed by the
State Government and therefore, the Chief Secretary and Home
Secretary are liable to be proceeded with for Civil contempt for
disobeying the orders of the Court.
511. We are unable to accept the above contention. After the
orders of this Court dated 18.3.2009, number of Petitions came to be
filed before the Supreme Court and the Supreme Court seized up the
matter.
Challenging the order of suspension on the ground of
441
violation of principles of natural justice, both the officers have filed SLP
No.7540/2009 before the Supreme Court.
By the order dated
14.7.2009, the Supreme Court set aside the order of suspension and
remitted back the matter to the High Court for affording opportunity to
both the officers. Having regard to the subsequent developments, we
do not find any wilful disobedience of the order of the Court dated
18.3.2009 by the State Government.
512. Lawyers have called for production of call log of CoP and
other officers.
Call log of CoP was filed without 'Tower details'.
Onbehalf of the lawyers, it was therefore submitted that there was
disobedience of the Court order by not filing the call logs with correct
particulars.
Onbehalf of CoP, the learned Government Pleader
submitted that on being requested, call log was given without Tower
and there was no
wilful disobedience of the order of the Court.
Subsequently, the call log was filed with Towers.
Therefore, we are
not inclined to accept the contention that there is disobedience of the
orders of the Court.
513. Chief Secretary and Home Secretary:
Placing reliance upon 1994 (6) SCC 442 [Mohd. Aslan @
Bhure, Acchan Rizvi v. Union of India, State of Uttar Pradesh
and others], it was contended that when a Government Official has
committed contempt of court, State Government are also to be
442
proceeded for contempt of court.
Onbehalf of the lawyers, it was
contended that in the order dated 19.2.2009, Court has clearly pointed
out that ACJ has contacted CoP as well as Chief Secretary requesting
them to withdraw the Police forces. But the Police force was not
withdrawn; but on the other hand, they came to ACJ's Chamber along
with CoP only after 6.00 P.M. and therefore, there is disobedience of
the order of Court.
514. Ofcourse, in the order dated 19.2.2009, it is indicated that
ACJ had telephonic conversation with CoP and Chief Secretary
requesting them to withdraw the Police force. According to the Police
to quell the mob, additional strength was deployed in the High Court
campus. We have already held that CoP Mr.Radhakrishan, Addl. CoP
Mr.Viswanathan, JCP (North) Mr.Ramasubramani and DCP Mr.Prem
Anand Sinha have not exercised due care and caution in deploying the
police force and retaining them. The time of telephonic conversation
with the Chief Secretary is also not indicated in the order dated
19.2.2009. While so, it cannot be contended that State Government
has also contributed to the situation.
515. While the matter was heard at 6.40 P.M. on 19.2.2009 in
the Chambers of ACJ, the Chief Secretary and Home Secretary who
were present have undertaken to abide the orders of the court in
referring the matter to CBI.
By Notification No.13933/Pol.VII/2009
443
dated 23.2.2009 under Sec.6 of DSPE Act, 1946 of Home (Pol.VII)
Department,
Government
of
Tamil
Nadu
and
Notification
No.228/10/2009-AVD-IIdated 28.2.2009 under Sec.5 of DSPE Act,
1946 of Government of India, State Government has referred
the
case registered against the lawyers in Crime No.15/2009 on the file of
B4-High Court Police Station for investigation to CBI. The investigation
as to the entire incident and the Police excess and the order of the
Court was not referred. Based on the same, CBI has re-registered the
case in R.C.No.1(S)/2009/CBI/SCB/Chennai under Sec. 147, 353, 332,
450, 436, 307 IPC and Sec.3 (1) TNPPDL Act.
516. Court order dated 19.2.2009 was not made the basis for
referring the matter to CBI. In the order dated 02.3.2009, Court has
observed that State has violated the Court's direction in not registering
the case pursuant to the Court's order dated 19.2.2009 and asking CBI
to investigate the matter as per the Court's order dated 19.2.2009.
State Government addressed Government of India, Department of
Personnel and Training, Ministry of Personnel, Public Grievances and
Pensions referring to the order passed by the Court on 2.3.2009.
Based on the order dated 19.2.2009, CBI has registered the case in
R.C.No.2(S)/2009/CBI/SCB/Chennai under Sec. 144, 147, 148, 323,
325, 326, 427, 436 and 450 IPC and under Sec. 3(1) and 4 of TNPPDL
Act.
444
517. Onbehalf of the lawyers, it was contended that there was
clear violation of State Government in not referring the entire incident
on 19.2.2009 and therefore, State Government has to be proceeded
with for civil contempt. Learned Government Pleader tried to explain
that without complaint as to the incident on 19.2.2009, the matter
could not be referred to. Even though, in the order dated 02.3.2009,
Court has observed that State have violated the Court's order dated
19.2.2009,
having regard to the fact that subsequently, CBI has
registered the case in R.C.No.2(S)/2009/CBI/SCB/Chennai, we do not
find any disobedience of the order of the Court committed by the State
Government.
Prima facie, we do not find any wilful disobedience of
the Court's order by the State Government to proceed against the
State Government.
518. Contempt of Court – Criminal Contempt:Criminal contempt has been defined under Section 2 (c) of the
Contempt of Courts Act. Sec.2(c) of Contempt of Courts Act reads as
under:"2
(c)
'Criminal
Contempt'
means
the
publication
(whenever by words, spoken or written, or by signs, or by
visible representation, or otherwise) of any matter or the
doing of any other act whatsoever which (i)scandalizes or tends to scandalize, or lowers or
tends to lower the authority of, any court; or
445
(ii)prejudices, or interferes or tends to interfere with,
the due course of any judicial proceeding; or
(iii)interferes or tends to interfere with, or obstructs
or tends to obstruct, the administration of justice
in any other manner.
519. Contempt is sui generis.
There is no prosecution, no
summons or warrant, no right of trial by jury. The judge decides the
matter, as in this case, on the basis of his own knowledge of the facts
which is the basis of his power.
520. In Baradakanta Mishra v. The Registrar of Orissa
High Court, MANU/SC/0071/1973 : 1974 Cri LJ 631, the
Supreme Court noted that all the three clauses of Section 2(c) of the
Contempt of Courts Act, 1971 that define 'criminal contempt' define it
in terms of obstruction of or interference with the administration of
justice.
It was further noted that broadly the Act accepts that
proceedings
in
contempt
administration of justice.
are
always
with
reference
to
the
With reference to the three sub-clauses of
Section 2 (c) of the Act, the Supreme Court observed that Sub-clauses
(i) and (ii) deal with obstruction and interference respectively in the
particular way described therein, while Sub-clause (iii) is a residuary
provision by which any other type of obstruction or interference with
the administration of justice is regarded as a criminal contempt.
A
446
little later in the decision citing R v.Gray [1900] 2 QB 36 it was said
that the contempt jurisdiction should be exercised 'with scrupulous
care and only when the case is clear and beyond reasonable doubt.
521. In 1981 Cri LJ 315 [Rachpudi Subba Rao v. Advocate
General], the Supreme Court considered the scope of the expressions
'administration of justice' appearing in Sub-clause (iii) of Section 2(c)
of the Act and 'course of judicial proceedings' appearing in Sub-clause
(i)
and
(ii)
thereof.
It
was
observed
that
the
expression
'administration of justice' is far wider in scope than the expression
'course of judicial proceedings'.
The words 'in any other manner'
further extend its ambit and give it a residuary character.
It was
emphasized that 'although Sub-clauses (i) to (iii) describe three
distinct species of 'criminal contempt' they are not mutually exclusive.
Interference or tendency to interfere with any judicial proceeding or
administration of justice is a common element of Sub-clauses (ii) and
(iii).
522. In (2004) 5 SCC 26 [Daroga singh and others v.
B.K.Pandey] on 18.11.1997 at Bhagalpur in Bihar, 1st Additional
District Judge in his Court room and Chambers was attacked by
number of Police officers. Because of non-appearance in Court, NBW
was issued against one Investigating Officer-Jokhu Singh and he was
remanded
to
judicial
custody.
Reiterating
their
demand
for
447
unconditional release of Jokhu Singh, number of Police Officers armed
with lathis and other weapons and shouting slogans against the
Judicial Officer, barged in to his Court room and overpowered the
bodyguard assaulted the Judicial Officer. Based on the report sent by
the District Judge, Patna High Court initiated suo moto contempt
where Police officers and personnel were found guilty of contempt of
court.
Observing that the act committed amounts to deliberate
interference with the discharge of duty of the Judicial Officer and that
it has the tendency to affect the entire judiciary in the country which is
a dangerous trend, Supreme Court held as follows:"27. In the present case, a judicial officer of the
rank of District Judge was attacked in a preplanned and calculated manner in his courtroom
and when he tried to protect himself from
physical harm by retiring of his chambers by
chasing him there and causing injuries to him.
The
raising
unconditional
of
bail
slogans
for
compounded the offence.
and
Jokhu
demanding
Singh
further
The courts cannot be
compelled to give "command orders".
The act
committed amounts to deliberate interference
with the discharge of duty of a judicial officer by
intimidation apart from scandalising and lowering
the dignity of the court and interference with the
administration of justice.
The effect of such an
act is not confirmed by to a particular court or a
district, or the State, it has the tendency to affect
the entire judiciary in the country.
It is a
448
dangerous trend. Such a trend has to be curbed.
If for passing judicial orders to the annoyance of
the police the presiding officers of the courts are
to be assaulted and humiliated the judicial system
in the country would collapse.
...........
41. In the constitutional scheme the judiciary is
entrusted
with
Constitution
and
the
task
the
of
laws.
upholding
Apart
the
from
interpreting the Constitution and the laws, the
judiciary discharges the function of securing
maintenance of law and order by deciding the
disputes in a manner acceptable to civilised and
peace-loving society.
In order to maintain the
faith of the society in the rule of law the role of
the judiciary cannot be undermined. In a number
of cases this Court has observed that foundation
of the judiciary is the trust and confidence of the
people of the national and when such foundation
or trust is rudely shaken by means of any
disrespect by the very persons who are required
to enforce the orders of the court and maintain
law and order the people's perception of efficacy
of the systems gets eroded.
42. The judges are – as a jurist calls them –
"paper tigers". They do not have any machinery
of their own for implementing their orders.
People, while approaching the court of law which
they regard as the temple of justice, feel safe and
secure whilst they are in the court.
Police
personnel are deployed in the court campus for
the purpose of maintaining order and to see that
449
not only the judges can work fearlessly in a calm,
cool and serene atmosphere but also to see that
anyone coming to the court too feels safe and
secure
threat.
Every
participant
in
court
proceedings is either a seeker of justice or one
who comes to assist in administration of justice.
So is the expectation of the members of the Bar
who are treated as officers of the court.
We
shudder to feel what would happen if the police
personnel
themselves,
and
that
toc
in
an
organised manner, are found to be responsible
for disturbing the peace and order in the court
campus, for causing assault on the judges and
thus sullying the temple of justice apart from
bringing a bad name to an indispensable organ of
the executive wing of the State.
43. Police is the executive force of the State to
which is entrusted the duty of maintaining law
and order and of enforcing regulations for the
prevention and detection of crime. (Encyclopaedia
Britannica, Vol.58, p.158).
The police force is
considered by society as an organised force of
civil officers under the command of the State
engaged in the preservation of law and order in
the
society
enforcement
and
of
detection of crime.
maintaining
laws
and
peace
prevention
by
and
One who is entrusted with
the task of maintaining discipline in the society
must first itself be disciplined. Police is an agency
to which social control belongs and therefore the
police has to come up to the expectations of the
society." (Emphasis added)
450
523. The learned counsel Mr.Raghavachari placed reliance upon
2009 Cri LJ 677 [Courts on its own motion v. State and others]
– Suo moto Contempt Petition in the case of Senior Counsel
Mr.R.K.Anand.
Referring to plethora of decisions, Delhi High Court
summarised the emerging principles as important considerations in
dealing with the cases of Criminal Contempt of Court as under:1. The contempt jurisdiction of a Court is sui
generis; it is a special jurisdiction and a
summary jurisdiction. The Court is in effect the
jury,
the
prosecutor,
the
judge
and
the
hangman and so the jurisdiction has to be
exercised
with
great
caution
and
circumspection.
2. Action for contempt may be taken only if there
is
a
substantial
interference
in
the
administration of justice. A Court should not be
hypersensitive and take umbrage at every
trivial misdemeanor. A Court should punish for
contempt only if the act of omission complained
of is deliberate and contumacious.
3. Proceedings for contempt are quasi-criminal in
nature. While it may not be necessary to prove
mens rea, but the standard of proof is that of
proof beyond a reasonable doubt.
This is
because an alleged contemnor may be sent to
prison for criminal contempt of Court.
4. Since proceedings for contempt of Court are
quasi criminal in nature, the alleged contemnor
451
must
be
duly
informed,
with
sufficient
particularity, of the allegations against him so
that he may effectively defend himself.
5. A burden of proof is on the person asserting
that there is a contempt of Court.
6. The
Court
is
entitled
to
devise
its
own
procedure for dealing with contempt of Court,
and
the
generally
accepted
criminal
law
principles or the Evidence Act are not applicable
to such proceedings. However, the principles of
natural justice must be adhered to Summary
justice may be rough justice, but it should be
fair.
We keep these principles in mind before proceeding to consider the
contempt committed by the Police Officers and Police personnel.
524. Aftermath of 19.02.2009:Let us give a brief sketch how the incident on 19.2.2009 affected
functioning of Courts and administration of justice.
The violence left
scores of Advocates and some of Police personnel, Court staff, litigants
injured.
Police entering into Court halls and attacking the Court
premises, lawyers, Court staff is a serious matter.
The incident
persisted for nearly 3- 4 hours. The Committee of Hon'ble Judges was
appointed to assess the damages caused to the Court property and
also to the vehicles.
The smashed Cars and other vehicles and
mangled remains of damaged Court properties remained as it is for a
few days. Glass pieces, vehicles and other articles were found strewn
452
all around the court premises.
Because of brewing tension and
damages caused to the Court buildings and properties, both Principal
Seat and Madurai Bench of Madras High Court remain closed on
20.2.2009, 23.2.2009 and 24.2.2009. City Civil Court, Small Causes
Court, Tribunals functioning in the High Court campus remained closed
for about one week and the Courts opened only on 02.3.2009.
525. Police entering the court premises and lathicharging the
lawyers has also caused ripples in the District Courts and moffusil
Courts. Both High Court and District Courts and also moffusil Courts,
lawyers staged protest throughout the State.
Because of the rift
between the lawyers and the Police, the under-trial prisoners could not
be taken to the Courts for remand extension and remand extension
could not be done.
526. The stand off between advocates and Police personnel had
resulted in the Police taking decision not to enter Court premises in
many Districts. Resultantly the work of the criminal Courts could not
make progress. In Madurai, Court of VIth Judicial Magistrate himself
did the Escort work taking the surrendered accused to Prison [Source
– The Hindu dated 06.3.2009].
527. As we elaborated earlier, the riot Police barged into the
corridors of the Court Halls even when the Courts were functioning.
453
The chaos and confusion in the premises disrupted the Court
proceedings. By the mindless attack, Police smashed tube lights, glass
doors and whatever they could damage with their lathis. The incident
persisted for 3 -4 hours.
The gross impropriety committed by the
Police on the Court premises and the rank lawlessness they indulged in
by resorting to indiscriminate attack on everyone including Judges,
litigants and lawyers is clearly an affront to the judiciary.
528. Learned Senior Counsel Mr. Rajeev Dhavan submitted that
only to diffuse Law and Order problem and to protect the Court
buildings and also B4-High Court Police Station within the premises,
the Police had to act using the required minimum force and the Police
officers had no personal affront to the Institution.
529. Inherent power of the Court to protect the public in the
Administration of Justice and to convict by way of fine or imprisonment
had existed in the Courts from time immemorial. In Morris v. Crown
Office (C.A) [(1970) 2 QB 114 – Law graduates of impeccable
character felt that attention should be drawn to the lack of status and
dignity
accorded
to
their
mother
tongue
in
Wales.
The
recommendation of the committee under Sir David Hughes Parry in
1965 in favour of the equal validity of Welsh and English in all
departments of public administration in Wales has only been partially
implemented through the Welsh Language Act, 1967. Being impatient
454
over the delay in implementation the Appellants decided to invaded the
Court. It was clearly prearranged. They had come all the way from
their University of Aberystwyth. They strode into the well of the Court.
They flocked into the public gallery.
They shouted slogans.
They
scattered pamphlets. They sang songs. They broke up the hearing.
The judge had to adjourn.
Some of them were sentenced to three
months imprisonment for contempt and those who were appealed
were imposed fine of 50£. In the said case the contention raised was
that the appellants intended no personal
affront to the Judge.
Observing that whatever be the noble aim of the appellants and
affirming the orders of the lower court finding them guilty, Court of
Appeals held as under:"In sentencing these young people in this way the
judge was exercising a jurisdiction which goes
back for centuries. It was well described over 200
years ago by Wilmot J. in an opinion which he
prepared but never delivered.
"It is a necessary
incident," he said, "to every court of justice to fine
and imprison for a contempt of the court acted in
the fact of it." That is Rex v. Almon (1765) Wilm
243, 254. The phrase "contempt in the fact of the
court" had a quaint old-fashioned ring about it;
but the importance of it is this; of all the places
where law and order must be maintained, it is
here in these courts. The course of justice must
not be deflected or interfered with.
Those who
strike at it strike at the very foundations of our
society.
To maintain law and order, the judges
455
have, and must have, power at once to deal with
those who offend against it. It is a great power –
a power instantly to imprison a person without
trial but it is a necessary power. ......" (Emphasis
added)
We are of the considered view, the degree of violence unleashed in the
High Court campus is clear obstruction and interference in the course
of Administration of justice.
530. Responsibility of individual Officers/Role played by
individual Officers:
As we pointed out earlier, as per Sec.5 of Chennai City Police Act
–
Administration
of
the
City
of
Chennai
is
vested
with
the
Commissioner. As per Sec.7 of Chennai City Police Act, Commissioner
shall be the Executive magistrate within the city limits. Under Sec.6 of
the
Act,
Government
appoints
Jt.
Commissioner
of
Police/Dy.
Commissioner of Police or Asst. Commissioners who shall perform any
of the duties or exercise any of the powers assigned to that Officers as
Commissioner directs.
531. In his capacity as Commissioner of Police, 7th Respondent
has seized up the problem of lawyers' boycott even from 29.1.2009.
On
6.2.2009,
Commissioner
has
written
a
letter
in
D.O.Lr.No.151/S.B.VII/2009 to the Registrar-General, High Court,
Madras narrating various types of agitations indulged by the lawyers in
and around the High Court premises.
Referring to egg throwing
456
incident and attack on Dr. Subramaniam Swamy, on 18.2.2009
a
meeting was convened by ACJ in which DGP-Mr.K.P.Jain, Addl. DGP
(L&O)-Mr.Rajendran,
Mr.Ramasubramani,
CoP-Mr.Radhakrishnan,
DCP-Mr.Prem
Anand
JCP
Sinha,
(North)-
ACP-Mr.Kader
Mohideen attended.
532. After safe exit of Dr. Subramaniam Swamy, after the
lawyers came to B4-High Court Police Station for surrender, strength
of
Police
personnel
(147)
was
shifted
by
Mr.Ramasubramani and DCP Mr.Prem Anand Sinha.
JCP
(North)
As pointed out
earlier, this initial mistake of shifting the Police personnel from B2Explanade Police Station to B4-High Court Police Station led to the
sordid episode.
As we pointed out earlier, there was communication
between CoP and JCP(North) between 14:23 – 15:01 hours. From the
facts and circumstances, we have no hesitation in holding that shifting
of Police personnel (147) from B2-Esplanade Police Station to B4-High
Court Police Station must have been with the knowledge of CoP.
At
14:45 hours, CoP issued direction to Addl. CoP Mr.Viswanathan to go
to B2-Esplanade Police Station to monitor the developments caused by
the surrender of Advocates.
533. During the course of arguments, Dr. Rajeev Dhavan,
learned Senior Counsel would submit that CoP Mr.Radhakrishnan is
one of the distinguished meritorious Police Officer in the State and that
457
he has also addressed the United Nations as to "Harmonious
functioning of the Police in the Inter Religious Community Living".
Learned Senior Counsel has also submitted that the Officer being a
distinguished Officer needs protection from the higher judiciary in his
actions done in 'good faith'. As we have discussed earlier, the Officer
appears
to
have
acted
with
obstinate
mind.
Acting
Chief
Justice/Registrar-General kept on calling CoP from 16:01 hours
requesting him to withdraw the Police Force from High Court campus.
What we find is, again and again, the strength in the High Court
campus was increased.
Being vested with the Administration of City
Police, we find the then CoP Mr.Radhakrishnan is squarely responsible
for deploying the riot Police inside the High Court campus on
19.2.2009.
534. As we discussed earlier, CoP was present in the riot area
even from 16:43:50 hours. Even according to the version of CoP, he
entered into the riot area at 17:00 hours. As pointed out by us earlier,
from the Video clippings [CD-R2], it was clear that between 17:03 –
17:05 hours there were incessant pelting of stones by the Police
inspite of the fact that lawyers were showing hands 'not to pelt
stones'; and inspite of the signals that Hon'ble Judges who were
coming along with their chowkidars. Inspite of such signals, lawyers
were chased and there was lathicharge at 17:05 hours. According to
CoP. after Police Station was set fire, a collective decision was taken
458
and lathicharge was ordered at 5.45 P.M. As discussed earlier, there
was clear violation of PSO 703. On the basis of the materials produced
before us, we are of considered view that CoP being vested with the
Administration of City Police was mainly responsible for deploying the
riot Police force and violence in the High Court campus and which
caused obstruction and interference in the course of Administration of
Justice.
535.
Being
jurisdictional
Officers,
JCP
(North)
Mr.Ramasubramani and DCP Mr.Prem Anand Sinha mobilised the
strength for providing security in connection with the visit of Dr.
Subramaniam Swamy on 19.2.2009.
As jurisdictional Officers and
being present in the premises from the morning, both these Officers
are solely responsible for shifting of strength (147) from B2-Esplanade
Police Station to B4-High Court Police Station. Both these Officers are
also to be held responsible for not appraising the CoP about the
volatile situation. The then JCP (North) Mr.Ramasubramani and DCP
Mr.Prem Anand Sinha have committed the initial mistake of shifting the
Police strength and thereafter B2-Esplanade Police Station to B4-High
Court Police Station and forcibly taking the lawyers to custody and
continuing to retain the Police force in the premises. As per lawyers'
version, first spell of lathicharge was between 3.30 – 4.00 P.M. From
CD-R2, we have also seen that there was chasing of lawyers even at
15:53 hours and damages caused to vehicles. Even from 15:53 hours
Police retaliated and no one seems to be controlling the situation.
459
536.
Both JCP(North) Mr.Ramasubramani and DCP-Mr.Prem
Anand Sinha have not foreseen the consequences of such shifting and
forcible taking of lawyers to custody and thereafter continuing to retain
the Police force near B4-High Court Police Station. In our considered
view, in shifting the Police personnel from B2-Esplanade Police Station
to B4-High Court Police Station and retaining the additional strength in
B4-High Court Police Station JCP (North) Mr.Ramasubramani and DCPMr.Prem Anand Sinha have not acted in 'good faith' and they have not
exercised due care and caution and therefore to be held responsible.
537. As pointed out earlier, at 14:45:18 hours, Mr.Viswanathan,
Addl. CoP was directed by the CoP to go to B2-Esplanade Police Station
to monitor the developments caused by the surrender of the advocates
in
B2-Esplanade Police Station.
Mr.Viswanathan arrived in B2-
Esplanade Police Station at 15:10 hours.
When Mr.Viswanathan
arrived in B2-Esplanade Police Station, the officer must have learnt
about the brewing tension in B4-High Court Police Station.
But
Mr.Viswanathan has not chosen to proceed to B4-High Court Police
Station to monitor the situation; but he has chosen to reach B4-High
Court Police Station only at 15:50 hours after the lawyers were forcibly
taken to custody.
While Mr.Viswanathan, Addl. CoP was in B2-
Esplanade Police Station, there were number of calls between
Mr.Viswanathan Addl. CoP and Mr.Ramasubramni-JCP(North) and
460
Mr.Prem Anand Sinha-DCP. The call log of Addl CoP Mr.Viswanathan
(Cell No.9444000029) is as under:919444000029
919444082838
Outgoing 19-2-09
151821
10
919444591110
10392
35898401415079
9194440000299
919940455455
Outgoing 19-2-09
152238
120
919444591110
10392
35898401415079
9194440000299
919445300101
Incoming
152701
40
919444591110
10392
35898401415079
9194440000299
919840566666
SMS
19-2-09
Incoming
153132
0
919444591110
10392
9194440000299
919840566666
SMS
19-2-09
Incoming
153318
0
919444591110
10392
9194440000299
919444465555
Incoming
153505
87
919444591110
10392
35898401415079
9194440000299
919445300101
Outgoing 19-2-09
153651
67
919444591110
10392
35898401415079
9194440000299
919444465555
Outgoing 19-2-09
153812
49
919444591110
10392
35898401415079
9194440000299
919444082838
Outgoing 19-2-09
155017
9
919444591110
10372
35898401415079
9194440000299
919444465555
Outgoing 19-2-09
155049
89
919444591110
10372
35898401415079
19-209
19-209
1039Flower
BazaarSTR-2
1039Flower
BazaarSTR-2
1039Flower
BazaarSTR-2
1039Flower
BazaarSTR-2
1039Flower
BazaarSTR-2
1039Flower
BazaarSTR-2
1039Flower
BazaarSTR-2
1039Flower
BazaarSTR-2
1037-High
Court-2
1037-High
Court-2
JCP(N)
calls
Addl.CoP
DCP calls
Addl. CoP
CoP calls
Addl. CoP
DCP calls
Addl. CoP
CoP calls
Addl. CoP
Addl. CoP
calls CoP
In his counter-affidavit, Mr.Viswanathan, Addl.CoP has not elaborated
upon
the
details
of
those
conversation
and
what
was
the
instructions/directions given by him to JCP(North) Mr.Ramasubramani
and DCP Mr.Prem Anand Sinha.
538. Be that as it may, admittedly Mr.Viswanathan, Addl. CoP
had arrived at B4-High Court Police Station at 15:50 hours.
Being
higher officer, he was in command from 15.50 hours till CoP arrived in
the riot area at 16.43 hours.
As elaborated earlier, at 15:53 hours,
there were stone pelting by the Police and chasing of lawyers.
As
noted earlier, at 16:25 hours, there was lathicharge on the litigant
public Mr.Sivakumar.
At 16:26 hours Advocate Mr.Mohanakrishnan
461
was surrounded by number of Policemen and lashed out lathi blows.
At 16:39 hours, there was chasing of lawyers followed by lathicharge.
539. In his counter-affidavit, Mr.Viswanathan averred that when
trouble was brewing, Police had to chase the angry advocates now and
then as ordered by the CoP.
Mr.Viswanathan, Addl. CoP has further
averred that he contacted CoP number of times at 15:55, 16:04,
16:24 and 16;27 hours seeking permission to withdraw the Police
force from High Court Campus.
540.
Mr.V.Selvaraj,
learned
counsel
for
Mr.Viswanathan
submitted that Mr.Viswanathan, Addl. CoP repeatedly suggested to CoP
that it would be prudent to withdraw the entire Police force from the
High Court premises, but the CoP insisted that Police should not be
withdrawn and that the entire Police Station should remain in the High
Court campus and protect the Police Station in the High Court
premises.
541.
In
his
counter-affidavit,
CoP
suggestion by Mr.Viswanathan, Addl.CoP.
has
denied
any
such
By saying that they have
simply obeyed the direction of the CoP, Mr.Viswanatha, Addl. CoP
cannot avoid his responsibility. As held in 1898 ILR Mds (21) 249
[Queen-Empress v. Subba Naik and others], Police officer is not
protected in that as he obeyed the orders of superior officer.
It is
462
pertinent
to
note
that
Mr.Viswanathan-Addl.CoP
and
Mr.Ramasubramani-JCP (North) were directed to be suspended by the
orders of this Court dated 18.3.2009 which was challenged before the
Supreme Court in SLP No.7540/2009.
In such circumstances, the
value to be attached to the averments in the counter-affidavit filed by
Mr.Viswanathan on 27.8.2009 and 16.9.2009 remains to be seen. The
officer Mr.Viswanathan, Addl. CoP being in command from 15:50 to
16:43 hours has not exercised due care and caution.
542. We are of the considered view that there are overwhelming
materials prima facie to show that the actions of Mr.Radhakrishnan,
then CoP; Mr.Viswanathan, then Addl. CoP; Mr.Ramasubramani, then
JCP (North) and Mr.Prem Anand Sinha-then DCP, Flower Bazaar
caused obstruction to functioning of Courts and interference in the
course
of
administration
of
justice
and
therefore,
contempt
proceedings are to be necessarily be initiated against them. Contempt
notice is ordered to be issued to the above Officers under Sec.15(1)
read with Sec.2(c)(iii) of Contempt Act for the following alleged
excesses viz., (i) for deployment of additional armed force inside the
High Court campus on 19.02.2009, after 11.30 am i.e. after
Dr.Subramaniam Swamy left the High Court premises and that too
without intimation/permission of the Registry; (ii) for the act of
creating commotion inside the High Court premises under the guise of
attempt to arrest the accused advocates and other advocates in
463
between 12.00 noon and 3.45 p.m.; (iii) for the act of entering the
High Court, City Civil Court, Court of Small Causes, Family Court, Law
Association
premises,
Madras
High
Court
Advocates
Association
premises under the guise of chasing the lawyers; (iv) for the alleged
act of causing extensive damages to the properties inside the campus
such as vehicles, buildings and association libraries and furniture; (v)
for the alleged act of causing injuries on the personnel namely the
sitting Judge of this Court, the lawyers, court staff and litigant public
who assembled in the High Court campus for carrying on their lawful
activities; (vi) for the alleged acts of interference in the course of
justice by paralysing the functioning of the High Court on 20th, 23rd and
24th of February, 2009, the functioning of City Civil Court, Court of
Small Causes and other Judicial Forums located inside the High Court
campus on 20th and 23rd to 27th February, 2009 and paralysing the
functioning of subordinate Courts throughout the State on 20th, 23rd
and 24th February, 2009; (vii) for the alleged act of failure to withdraw
the additional armed forces drawn into High Court premises inspite of
specific and repeated directions of the Hon'ble Acting Chief Justice;
(viii) for having filed false affidavits in this proceedings; and (ix) for
such other acts of the above contemnors which this Court comes
across in the course of the hearing of the contempt petition.
543. Director General of Police-Mr.K.P.Jain:
As we pointed out earlier, administration of City Police is vested
464
with CoP.
Even though, administration of City Police is vested with
the Commissioner, in the counter-affidavit, DGP has extensively
referred to Police Standing Orders and has only averred that it was
well within the jurisdiction of CoP to handle any law and order situation
to the best of his ability.
We are not happy with the way in which
counter affidavit has been filed by the DGP. The entire averments in
the counter-affidavit appears to be only blaming the lawyers. As the
Head of Police department, it was expected of the DGP to file the
counter affidavit with definite averments as to who were the Police
officers and Police personnel deployed and what are the positive steps
that DGP has taken in this regard. Though, we are not happy with the
averments in the counter-affidavit filed by DGP, we do not think that
there are enough materials to initiate contempt proceedings against
DGP.
544. Other Officers and various Police personnel present
in High Court Premises on 19.02.2009:
Mr.Anup Jaiswal-DGP (I&T), Mr.Sunil Kumar-Addl. CoP (Traffic),
Mr. Sandeep Rai Rathore, JCP [Central], Mr.Gunaseelan-JC (South
Zone), Mr.Sarangan-DCP, Kilpauk, S.Panneerselvam-DCP, Pulianthope,
Mr.T.S.Anbu-DCP,
Anna
Nagar,
Mr.C.Sridhar,
DCP,
Adyar,
Mr.
M.S.Muthusamy-DCP, T.Nagar, Mr.K.Joshi Nirmal Kumar-DCP (TrafficSouth),
Mr.Thirugnanam-DCP
(Traffic-North)
Inspector of Police were all present.
and
Mr.C.Jayakodi-
That apart number of Inspectors
and Police personnel were also deployed.
465
545. On behalf of Mr.Sandeep Rai Rathore-JCP (Central),
Mr.Muthusamy-DCP
(T.Nagar)
and
Mr.K.Joshi
Nirmal
Kumar-DCP
(Traffic-South), it was stated that those officers have no role to play in
the incident on 19.2.2009.
546. In his counter, Mr.Rajendran-Addl. DGP averred that the
only role played by him was to attend the meeting held in the
Chamber of ACJ on 18.2.2009 and he had no role to play in the
incident on 19.2.2009.
Mr.Rajendran-then Addl. DGP attended only
the meeting on 18.2.2009 and no case is made out to initiate
Contempt proceedings against Mr.Rajendran-then Addl. DGP.
547. In the counter-affidavit filed by Mr.Anup Jaiswal-DGP (I&T),
it is averred that he had nothing to do with the occurrence which took
place on 19.2.2009 and never took park in any of the events happened
there. In his counter, Mr.Sunil Kumar-Addl. ACP (Traffic) averred that
his role was confined to see the free flow of traffic on 19.2.2009
around the High Court. In his counter, Mr.Gunaseelan-JCP has stated
that he reached the High Court at 5.00 P.M. and he had nothing to do
with the incident on 19.2.2009. Mr.Sarangan-DCP has stated that he
was present in the High Court as
counter-affidavits
per direction.
Mr.S.Panneerselvam-DCP,
Like wise, in their
Mr.T.S.Anbu-DCP
and
Mr.C.Sridhar-DCP averred that they had no role to play and they
466
reached the High Court only at 5.00 P.M. In his counter, Mr.N.K.JoshiDCP averred that he had to role to play and he was not even present
in the campus on 19.2.2009. Mr.Thirugnanam-DCP has stated in his
counter that
he had no role to play and from 4.00 P.M. he was
directed to control
traffic work.
It his counter, Mr.C.Jayakodi-
Inspector of Police averred that he simply assisted in the operations
and no role was assigned to him other than being present.
548. As per the direction of CoP/JCP (North), the above Officers
were deployed in the High Court premises and outside.
Mr.Anup
Jaiswal-DGP (I&T); Mr.Sunil Kumar-Addl. CoP (Traffic); Mr. Sandeep
Rai
Rathore-JCP
[Central];
Mr.Sarangan-DCP,
Kilpauk;
Mr.T.S.Anbu-DCP,
Anna
Mr.Gunaseelan-JCP
(South
Mr.S.Panneerselvam-DCP,
Nagar;
Mr.C.Sridhar,
DCP,
Zone);
Pulianthope;
Adyar;
Mr.
M.S.Muthusamy-DCP, T.Nagar; Mr.K.Joshi Nirmal Kumar-DCP (TrafficSouth) and Mr.Thirugnanam-DCP (Traffic-North)
had no role in the
decision making process either in deploying the police personnel or
ordering lathicharge. There are no materials warranting initiation of
contempt proceedings against the above officers. But it would not
absolve them of their misconduct, if any, for the respective offences in
R.C.No.2(S)/2009/CBI/SCB/Chennai under Sec.144, 147, 148, 323,
325, 326, 427, 436 and 450 IPC and under Sec.3 (1) and 4of TNP
(PDL) Act, the FIR registered by the CBI. If any of the above Officers
are identified as having committed excess, those of the Officers are to
467
be proceeded with in accordance with law both in R.C.No.2 (S)/
2009/CBI/SCB/Chennai and also disciplinary proceedings.
549. So far as, Mr.Jeyakodi, Inspector of Police and other
Inspectors and Police constables including the riot police, are not
proceeded for contempt Cout . But it would not absolve them of their
misconduct, if any, for the respective offences in
R.C.No.2(S)/
2009/CBI/SCB/Chennai under Sec.144, 147, 148, 323, 325, 326, 427,
436 and 450 IPC and under Sec.3 (1) and 4 of TNP (PDL) Act in
accordance with law.
550. DISCIPLINARY PROCEEDINGS:Upon analysis of materials, we have arrived at the conclusion
that CoP- Mr.Radhakrishnan, Addl.CoP – Mr.Viswanathan, JCP (North)
– Mr.Ramasubramani and DCP (Flower Bazaar) – Mr.Prem Anand Sinha
were responsible for deploying the police force and for interference
with the administration of justice. Having regard to our order directing
initiation of the contempt proceedings on the above Officers, the next
aspect to be considered is initiation of appropriate disciplinary
proceedings against the said four officers.
551. By order dated 18.3.2009, the Full Bench has directed
initiation
of
disciplinary
proceedings
against
JCP
(North)
–
Mr.Ramasubramani and Addl. CoP (L&O) Mr.Viswanathan and directed
468
them to be placed under suspension. In SLP (Civil) No. 7540 of 2009,
the Supreme Court has set aside the order and remitted the matter
back to the High Court to afford an opportunity to the above two
officers.
552. We have heard the arguments at length on behalf of JCP
(North) – Mr.Ramasubramani and Addl. CoP (L&O) Mr.Viswanathan.
553. On behalf of the State, it was submitted that Sundaradevan
- One Man Committee headed by Mr.Sundaradevan, IAS was appointed
to inquire into the police action and to fix the responsibility for the
alleged excess committed during the law and order incident which
happened in the High Court campus on 19.2.2009 and the lawyers did
not co-operate with the Sundaradevan Committee.
554. The learned Advocate General submitted that since the
lawyers did not co-operate in the inquiry by the One Man Committee,
the Committee is yet to arrive at the conclusion as to who were
responsible for committing excess and in such circumstances, writ of
mandamus to initiate disciplinary proceedings may not be appropriate.
555. Dr. Rajeev Dhavan, learned Senior Counsel submitted that
a positive mandamus will lie when the exercise of power contains
objective criteria and where there is a power coupled with a duty. It
469
was further submitted that while dealing with the law and order
situation in the High Court campus on 19.2.2009 for committing the
alleged excess, no mandamus could lie to the Government to
initiate disciplinary proceedings.
556. Elaborating upon the circumstances under which the writ of
mandamus will lie, the learned senior counsel Dr.Rajeev Dhavan
placed reliance upon
judgment of the Supreme Court rendered in
Comptroller and Auditor-General of India v. K.S.Jagannathan (1986) 2 SCC 679, wherein it was held as follows:"There is thus no doubt that the High Courts in
India exercising their jurisdiction under Article
226 have the power to issue a writ of mandamus
or a writ in the nature of mandamus or to pass
orders and give necessary directions where the
government or a public authority has failed to
exercise or has wrongly exercised the discretion
conferred upon it by a statute or a rule or a policy
decision of the government or has exercised such
discretion
mala
considerations
or
fide
by
or
ignoring
on
irrelevant
the
relevant
considerations and materials or in such a manner
as to frustrate the object of conferring such
discretion or the policy for implementing which
such discretion has been conferred.
In all such
cases and in any other fit and proper case a High
Court can, in the exercise of its jurisdiction under
Article 226, issue a writ of mandamus or a writ in
470
the nature of mandamus or pass orders and give
directions to compel the performance in a proper
and lawful manner of the discretion conferred
upon the government or a public authority, and in
a proper case, in order to prevent injustice
resulting to the concerned parties, the court may
itself pass an order to give directions which the
government or the public authority should have
passed or given had it properly and lawfully
exercised its discretion." [Emphasis added].
557. It was submitted that since the police officers have acted in
good faith to maintain law and order situation in the premises, no case
is made out for issuing direction to the State Government to exercise
its discretion to initiate disciplinary proceedings against the officers.
558. Article 311 of the Constitution of India gives a two-fold
protection (i) against dismissal or removal by authority subordinate to
that by which appointed and (ii) against dismissal, removal or
reduction in rank without giving a reasonable opportunity of showing
cause against the proposed action. Protection under Article 311 is
available to permanent as well as temporary employees. To invoke
Article 311, the Court has to apply two tests viz., (i) whether the
government servant has right to the post or the rank or (ii) whether he
has been visited with civil consequences. The protection under Article
311 of the Constitution of India applies to the persons who are
471
members of civil servant of the State or All India service or holding
Civil post under Union or State.
559. We have already arrived at the conclusion that the Officers
viz., CoP- Mr.Radhakrishnan, Addl.CoP – Mr.Viswanathan, JCP (North)
– Mr.Ramasubramani and DCP (Flower Bazaar) – Mr.Prem Anand Sinha
were responsible for causing obstruction to the functioning of the
Courts on 19.2.2009 and also caused interference with the course of
administration of justice which led to closure of the High Court on
20.2.2009, 23.2.2009 and 24.2.2009 and for one week in the City Civil
Court and Small Causes Court situated in the High Court premises.
Hence, we are of the considered view that disciplinary proceedings are
to
be
initiated
against
CoP-Mr.Radhakrishnan,
Addl.CoP–
Mr.Viswanathan, JCP (North)–Mr.Ramasubramani and DCP (Flower
Bazaar)–Mr.Prem Anand Sinha.
560. For any action taken under Sections 129 and 130
of
Crl.P.C., in dispersal of assembly by use of civil force and for use of
armed forces to disperse assembly, the Officers/ Police personnel are
entitled to protection against the prosecution for acts done under
Sections 129 and Section 130 Cr.P.C., only if they have acted in good
faith. We have already held that prima facie that there are over
whelming materials to show that the above officers have not acted in
good faith and they have not exercised due care and caution; nor did
472
they have foreseen the consequences of their action upon the
administration of justice. In such view of the matter, there could be no
impediment in initiating disciplinary proceedings.
561. In the counter affidavit filed by the Home Secretary, in
para 22, the State Government placed on record its statement that
any Police Personnel if found to be the cause for the excess committed
they will be suitably punished by initiating appropriate departmental
action. During his submission, the learned Advocate General also
reiterated the stand of the Government.
562. On behalf of the lawyers, it was submitted that the
Officers, who were at the helm of affairs should be (a) transferred, (b)
suspended, (c) to file criminal complaints against them and (d) to
initiate disciplinary proceedings. It was mainly argued that suitable
directions are to be issued to the State Government for initiating
disciplinary proceedings and during pendency of the disciplinary
proceedings to suspend the officers responsible for the incident on
19.2.20009.
563. Submitting that suspension is a major punishment, the
learned senior counsel Dr. Rajeev Dhavan contended that order of
suspension cannot lightly be passed against a civil servant who is
entitled to protection under Article 311 of the Constitution of India. It
473
was further argued that only when the Officer was proceeded under
the following charges, any suspension can be ordered viz., (i) Rule 17
(e) of the TNCS (D & A) Rules (or) (ii) Rule 3(e) of TNPSS (D & A)
Rules (or) (iii) Rule 3 of the AIS (D & A) Rules and no suspension can
be made apart from the above circumstances.
564. The learned senior counsel would further submit that
responsibility for ordering suspension is wholly with the constitutional
and statutory authorities and it is not for the Court to see whether to
keep an employee under suspension pending any action. In support of
his contention, the learned senior counsel placed reliance upon the
judgment of the Supreme Court rendered in State of Orissa v.
BimalKumar Mohanty - (1994) 4 SCC 126, wherein the Supreme
Court has held that after taking into consideration the gravity of the
misconduct sought to be inquired into or investigated and the nature of
the evidence placed before the appointing authority and on application
of mind by disciplinary authority, should consider the above aspects,
decide whether it is expedient to keep an employee under suspension
pending disciplinary proceedings. It is fairly settled that it is the
prerogative of the appointing authority or disciplinary authority
whether to place the officer on suspension or not on consideration of
gravity of the alleged misconduct or the nature of the allegations
imputed to the delinquent employee. The learned senior counsel
Dr.Rajeev Dhavan submitted that when it is purely the discretion of
474
the Government to keep an employee under suspension pending
disciplinary proceedings, no mandamus will lie to usurp statutorily
assigned role or dictate how it is to be done.
565. Learned Senior Counsel mainly urged that the Court cannot
dictate the decision of the statutory authority that ought to be made in
the exercise of discretion in given case and the Court cannot direct the
statutory authority to exercise the discretion in a particular manner.
Reliance was placed in the Supreme Court judgment rendered in U.P.
State Road Transport Corpn. v. Mohd. Ismail (1991) 3 SCC 239
and Aeltemesh Rein v. Union of India (1988) 4 SCC 54.
566. Reliance was also placed on the judgments of the Supreme
Court reported in State of W.B. v. Nuruddin Mallick (1998) 8 SCC
143 and A.P. SRTC v G. Srinivas Reddy (2006) 3 SCC 674. In one
of the decision viz., in (1998) 8 SCC 143, it was held that,
"................... It would not be appropriate for the
Court to substitute itself for the statutory authorities to
decide the matter".
567. Observing that the Court cannot direct the statutory
authority to exercise the discretion in a particular manner, reliance was
placed on the judgment of the Supreme Court reported in Chingleput
Bottlers v. Majestic Bottling Co., (1984) 3 SCC 258, wherein it is
475
held as follows:"....... Normally, where the statute vests a discretionary
power upon an administrative authority, the Court
would not interfere with the exercise of such
discretion unless it is made with oblique motives
or
extraneous
purposes
or
upon
extraneous
considerations." (Emphasis added)
568. We are conscious that it would not be appropriate for the
Court to substitute itself for the statutory authorities and usurp the
discretion of the Government in dealing with its Officers. We are also
conscious that normally writ of mandamus may not be issued directing
the State Government to exercise its discretion in a particular manner.
The extra ordinary jurisdiction under Article 226 of the Constitution of
India is not daunted where there is glaring violation of fundamental
rights and situation warrants an affirmative action.
569. In the judgment of the Supreme Court rendered in
GUJARAT STEEL TUBES LTD. v. G.S.T. MAZDOOR SABHA
1980
(1) LLJ 137, it was observed that the power under Article 226 of the
Constitution of India is larger. In para 80 of the said judgment, it was
held as follows:“ ....... So broad are the expressive expressions
designedly used in Article 226 that any order
476
which should have been made by the lower
authority could be made by the High Court. The
very width of the power and the disinclination to
meddle, except where gross injustice or fatal
illegality and the like are present, inhibit the
exercise but do not abolish the power.“
570. We are mainly concerned with fair and unbiased inquiry.
Continuance in office by the Officers who were responsible for the
police excess might prejudice the inquiry.
Having regard to our
conclusion that the Officers viz., CoP- Mr.Radhakrishnan, Addl.CoP –
Mr.Viswanathan, JCP (North) – Mr.Ramasubramani and DCP (Flower
Bazaar) – Mr.Prem Anand Sinha are responsible for the excess
committed and causing obstruction to administration of justice,
to
enable fair and unbiased inquiry, in our considered view that it will be
in order for the State Government to exercise its discretion by placing
the
above
Officers
under
suspension
pending
the
disciplinary
proceedings.
571. Directions to CBI case:
R.C.No.1(S)/2009/CBI/SCB/Chennai:-
Based
on
the
complaint lodged by Mr.Jayakodi-Inspector of Police on 19.2.2009,
case was registered in Crime No.15/2009 under Sec.147, 353, 332,
450, 436, 307 IPC r/w. 3(1) TNPPDL Act against named five lawyers
477
and 150 lawyers. Crime No.15/2009 was transferred to CBI and reregistered in R.C.No.1(S) CBI/SCB/Chennai under Sec.147, 353, 332,
450, 436, 307 IPC and under Sec.3 (1) TNPPDL Act.
572. Mr.Prabakaran, President TNAA and Mr.Paul Kanagaraj,
President MHAA contended that as per the order dated 2.3.2009 any
information given subsequently after 6.40 P.M. on 19.2.2009 cannot
be treated to be a case and urged us to pass appropriate directions
that R.C.No.1(S)/2009/CBI/SCB/Chennai registered against lawyers
cannot be proceeded with.
573. We are unable to accept the contention that R.C.No.1(S)/
2009/CBI/SCB Chennai cannot be proceeded with.
The relevant
portion of the order dated 2.3.2009 reads as under:"4.
......
It
will
also
be
open
to
the
respondents/State authorities and Union of India
to pass appropriate orders on the basis of the
first information received by them at 6.40 P.M.
pursuant to the Court's order dated 19th February
2009. Any other information given subsequently
at or about 19.20 hours (7.20 P.M.) cannot be
treated to be a case registered pursuant to the
Court's order. It will also be open to the CBI to
register a case on the basis of the Court's order
478
dated 19th February 2009.
Court has only expressed its concern for non-registration of the case
based upon the order passed by the Bench at 6.40 P.M. on 19.2.2009.
Absolutely, there is nothing to indicate that Court has interdicted
continuance of investigation in R.C.No.1(S)/2009/CBI/SCB/Chennai
[Crime No.15/2009]. This is made very clear from the earlier order of
the Court dated 19.2.2009. In the said order dated 19.2.2009, Court
has recorded statement of Home Secretary that regarding the incident
on 19.2.2009, no lawyer would be taken to custody. However, Court
has categorically said after investigation, if necessary, they may
proceed in accordance with law.
The relevant portion of the order
reads as follows:" 2 (ii) The Home Secretary states that no lawyer will
be taken in custody in connection with today's
incidence. After proper police investigation and after
informing the matter to the Hon'ble the Chief Justice
(Acting Chief Justice for the present), if necessary, in
future, they may proceed in accordance with law."
574. As we elaborated earlier, group of lawyers pelted stones
and acted in a most unacceptable manner. There are also prima facie
evidence to indicate that miscreants appearing to be lawyers setting
fire to the B4-High Court Police Station.
If really the lawyers have
caused damage to the public properties and set fire to the B4-High
479
Court Police Station, they are necessarily to be proceeded with in
accordance with law.
575. On 18.9.2009, CoP has filed list of names of Advocates who
are said to have formed an unlawful assembly in front of B4-High
Court Police Station at 2.00 P.M. and also names of advocates who are
said to have set fire to B4-High Court Police Station. On the side of
Advocates, strong objections were raised contending that the list is
camouflaged by including the names of lawyers whom the Police seek
to victimise.
As such we are not inclined to accept the list of names
furnished either by lawyers or
by police involved.
Therefore, we
direct the investigation in Crime No.15/2009 now CBI R.C.No.1 (S)/
2009/CBI/Chennai be proceed in accordance with law.
576. R.C.No.2(S)/2009/CBI:- After the orders of the Court
dated 02.3.2009 and based upon the order dated 19.2.2009, CBI has
registered the case in R.C.No.2(S)/2009/CBI/SCB/Chennai against the
unnamed Police officials and other Police personnel. In its report, CBI
has stated that it has examined number of witnesses, Police officers,
Advocates, Judicial Officers, Court staff, litigant public and others.
577. In Para (16) of its report, CBI averred that "particulars
relating to identity of the Advocates have been collected from Madras
High Court Advocates Association and Madras Bar Association. But the
480
report does not indicate anything about the identification of the Police
personnel who indulged in deliberate destruction of vehicles and court
properties and beating of lawyers.
After the incident, eight months
had gone; but still the identity of the Police personnel who indulged in
deliberate destruction of vehicles and properties are yet to be known.
578. In the rejoinder, lawyers have given annexure containing
names of Police officers and Police constables allegedly involved in
damaging the vehicles.
In the list, they have also alleged that only
Police officers set fire to Police Station.
The learned Government
Pleader raised serious objections contending that such allegations are
baseless and reckless allegations are levelled against the Police
Officers. We are not inclined to place any reliance upon the annexure
filed by the lawyers and we eschew it from our consideration. CBI is
directed
to
proceed
with
the
investigation
in
R.C.No.2(S)/
2009/CBI/SCB/Chennai independently.
579. In so far as, R.C.No.2(S)/2009/CBI/SCB/Chennai,
CBI is
directed to identify the Police officers and Police personnel who
indulged in excesses lashing out lathi blows on the lawyers, litigant
public, Court staff and who indulged in causing damage to the vehicles
and also to the Court properties. The State Government and Director
General of Police are directed to immediately furnish the list of entire
Police officers and Police personnel and their present designation who
481
were in the High Court on 19.2.2009 to the CBI to enable it to identify
the Police officers and Police personnel.
CBI is also permitted to have
copy of Video and Photos taken by the Committee constituted by the
High Court to assess the damages. On identification of the Police
Officers and police Personnel CBI is directed to proceed with the
investigation in R.C.No.2(S)/2009/CBI/SCB/Chennai in accordance
with law.
580. CBI shall proceed with the investigation in both the cases
expeditiously and CBI is directed to file final Report in both cases
within a period of three months from the date of this order.
581. Incident on 17.2.2009/Crime No.13 of 2009:
In so far as the incident on 17.2.2009, already larger Bench has
seized up the matter and therefore, it is not necessary for us to issue
any direction in respect of Crime No.13/2009.
582. Compensation:To reimburse
compensation
to
the medical
the
Government has placed
damages
expenses
caused
to
and for
the
payment of
vehicles,
[G.O.Ms.No.668 dated 20.07.2009] at the
disposal of Registrar-General a total sum of Rs.61,00,000/-.
the
said
amount
of
State
Rs.61,00,000/-,
medical
Out of
expenses
and
compensation to the injured and to the damaged vehicles were paid as
482
under:1.Payment to Hospitals (Apollo Hospital
and Lifeline Multi Speciality Hospital)
...
Rs. 11,97,827.00
2.Compensation for injuries to persons
...
Rs. 20,99,768.00
3.Damages to Vehicles
i) Four Wheelers to 56 persons
ii) Two Wheelers to 59 persons
iii) For Cycles to 3 persons
4.Expenditure incurred for Repairing
The Damages caused to High Court,
City Civil Court, Small Causes Court
5.Law Association (TV)
... Rs. 10,63,953.00
... Rs.
6,39,460.00
... Rs.
40,000.00
-------------------TOTAL
Rs. 50,41,008.00
--------------------
Compensation for injuries to some more claimants is said to be under
processing.
583. Apart from medical expenses, the lawyers who sustained
grievous and simple injuries were also paid compensation as indicated
in the report filed by the Registrar-General. The question falling for
consideration is whether any further amount is to be paid to the
lawyers for infringement of their fundamental rights and for the
ignominy and humiliation suffered by them .
584. Award of compensation against the State is an appropriate
and effective remedy for redress of an established infringement of a
fundamental right under Article 21 by a public servant. The quantum of
compensation will, however, depend upon the facts and circumstances
483
of each case. Award of such compensation by way of public law
remedy will not come in the way of the aggrieved person claiming
additional compensation in a civil Court, in enforcement of the private
law remedy in tort, nor come in the way of the criminal Court ordering
compensation under Section 357 of Code of Civil Procedure.
585. Award of compensation as a Public law remedy for violation
of
fundamental rights enshrined in Article 21 of the Constitution, in
addition to the private law remedy under the Law of Torts was evolved
in the last two and half decades. The Supreme Court considered the
question of awarding compensation as Public Law remedy in AIR
1981 SC 928 [Bhagalpur Blinding case, (Khatri (ii) v. State of
Bihar].
586. In [Rudul Sah case Vs. State of Bihar [1983(4) SCC
141],
the petitioner therein approached the Supreme Court under
Article 32 of the Constitution alleging that though he was acquitted by
the Sessions Court on
3-6-1968, he was released from jail only on
06-10-1982, after 14 years, and sought compensation for his illegal
detention. The Hon'ble Supreme Court while recongnizing that Article
32 cannot be used as a substitute for the enforcement of rights and
obligations which can be enforced efficaciously through the ordinary
processes of courts, civil and criminal, raised for consideration the
important question as to whether in the exercise of its jurisdiction
484
under Article 32, the Supreme Court can pass an order for payment of
money, as compensation for the deprivation of a fundamental right.
Awarding compensation the Supreme Court held as follows:6. "Article 21 which guarantees the right to
life and liberty will be denuded of its significant
content if the power of this Court were limited to
passing orders of release from illegal detention.
One of the telling ways in which the violation of
that right can reasonably be prevented and due
compliance with the mandate of Article 21 secured,
is to mulct its violators in the payment of monetary
compensation. Administrative sclerosis leading to
flagrant
infringements
of
fundamental
rights
cannot be corrected by any other method open to
the judiciary to adopt. The right to compensation is
some
palliative
for
the
unlawful
acts
of
instrumentalities which act in the name of public
interest and which present for their protection the
powers of the State as a shield. If civilisation is not
to perish in this country as it has perished in some
others too well-known to suffer mention. It is
necessary to educate ourselves into accepting that,
respect for the rights of individuals is the true
bastion of democracy. Therefore, the State must
repair the damage done by its officers to the
petitioner's rights. It may have recourse against
those officers".
587. Rudul Sah case was followed in Bhim Singh V. State of
J&K [1985(4) SCC 677] and People's Union for Democratic
485
Rights V. Police Commissioner, Delhi Police Headquarters
[1989 (4) SCC 730].
588. The law was crystallised in Nilabati Behera V. State of
Orissa [1993 (2) SCC 746]. In that case, the deceased was arrested
by the police, handcuffed and kept in a police custody. The next day,
his dead-body was found on a railway track. The Supreme Court
awarded compensation to the mother of the deceased. Hon'ble
Supreme Court spelt out the following principles:"Award of compensation in a proceeding under
Article 32 by this Court or by the High Court
under Article 226 of the Constitution is a remedy
available in public law, based on strict liability for
contravention of fundamental rights to which the
principle of sovereign immunity does not apply,
even though it may be available as a defence in
private law in an action based on tort.
Enforcement of the constitutional right and grant
of redress embraces award of compensation as
part
of
the
legal
consequences
of
its
contravention.
9. A claim in public law for compensation
for
contravention
of
human
rights
and
fundamental freedoms, the protection of which is
guaranteed
in
the
Constitution,
is
an
486
acknowledged
remedy
for
enforcement
and
protection of such rights, and such a claim based
on
strict
liability
constitutional
made
remedy
by
resorting
provided
to
for
a
the
enforcement of a fundamental right is 'distinct
from, and in addition to, the remedy in private
law for damages for the tort' resulting from the
contravention
of
the
fundamental
right.
The
defence of sovereign immunity being inapplicable,
and
alien
to
the
concept
of
guarantee
of
fundamental rights, there can be no question of
such
a
defence
being
available
in
the
constitutional remedy. It is this principle which
justifies award of monetary compensation for
contravention of fundamental rights guaranteed
by the Constitution, when that is the only
practicable mode of redress available for the
contravention made by the State or its servants
in the purported exercise of their powers, and
enforcement of the fundamental right is claimed
by resort to the remedy in public law under the
Constitution by recourse to Articles 32 and 226 of
the Constitution.
487
589. The distinction between tort by the officers for which the
State may be vicariously liable and the primary and strict liability of
the State for the public law wrong of violation of a fundamental right
has sometimes not been maintained and cases of public law wrongs
redressed under the public law remedies by applications under Article
226 have at times been, referred to as cases of tort. In Chairman
Railway Board V. Mrs. Chandrima Das (AIR 2000 SC 988) where
a Bangladeshi woman was gang raped by employees of the Indian
Railway, the court rightly held that it was a case of violation of the
fundamental right of the Bangladeshi woman under Article, 21 which
applies also to non-citizens and the High Court was right in allowing
compensation of Rs.10 lakhs against the Railway in a public interest
petition under Article 226 as the "state was under a constitutional
liability to pay compensation to here. But in the course of discussion
some earlier cases relating to violation of fundamental right awarding
compensation under Article 32 or 226 have been described as cases
"in the the realm of tort" and there is also some reference to vicarious
liability of the State. As submitted earlier, the liability enforced under
Article 32 or 226 for violation of a fundamental right is the primary and
strict liability of the State and not its vicarious liability for the tort
committed by its officers.
590. We are conscious that extension of fundamental rights
under Articles 21 and 32 against private persons, apart from being of
488
doubtful validity, may open a Pandora's box and flood the Supreme
Court and High Courts with petitions seeking damages. Rights to life
and personal liberty against private persons are already covered
by
common law and statute law and private law remedies are available
for violations of these rights. The courts must also be astute to guard
against the trend that the blame for every misfortune must be laid at
the doorstep of the State under Article 21, lest every wrong or offence
against the person or property becomes redressable as a public law
wrong against the State on the ground that it was not sufficiently
vigilant in protecting the person or property of the victim. Time and
again the Supreme Court deprecated the tendency to grant huge sums
as damages under Article 226 in cases where the facts are disputed
and there has been no trial of issues involved.
591. In Nilabati Behera's case [1993 AIR SCW 2366], the
Supreme Court put in a word of caution as follows:"Of course, relief in exercise of the power under
Article 32 or 226 would be granted only (when) it
is established that there has been an infringement
of the fundamental rights of the citizen and no
other form of appropriate redressal by the court in
the
facts
and
circumstances
of
the
case,
is
possible, ...Law is in the process of development
and the process necessitates developing separate
public law procedures as also public law principles.
It may be necessary to identify the situations to
489
which separate proceedings and principles apply
and the courts have to act firmly but with certain
amount of circumspection and self-restraint lest
proceedings under Article 32 or 226 are misused as
a disguised substitute for civil action in private
law".
592. We are conscious that it is not in every case where there is
breach of fundamental right committed by the violator/Police that
compensation would be awarded under Article 226 of Constitution. The
infringement of the fundamental right must be gross and patent and in
controvertible and ex-facie glaring. But the case before us is of
exceptional nature where number of lawyers sustained grievous and
simple injuries. It is a clear case of breach of fundamental rights and
the infringement of fundamental rights is gross and patent and exfacie glaring. Having regard to the large scale infringement of
fundamental rights of large number of persons, in our considered view
that this is an appropriate case to award further damages towards the
injured persons.
593. Committee of Hon'ble Judges was constituted and
the
committee had gone into the nature of injuries and fixed the
compensation payable. Depending upon the nature of injuries and pain
and suffering the injured lawyers, Courts staff and others were paid
some amount as compensation. We are informed that most of the
lawyers have received the compensation amount without prejudice to
their right of claiming further compensation.
490
594. Having regard to the breach of fundamental rights of large
number of persons and with a view to give quietus to the matter, we
deem it appropriate to award further compensation to the injured
persons.
We have carefully examined the list furnished by the
Registrar-General and the nature of injuries sustained by each of the
injured persons.
As per the report of the Registrar General, totally
175 were injured, out of which only 139 appeared before the Medical
Board/Committee.
Those of them who sustained grievous injuries
resulting in impairments shall be entitled to Rs.1,00,000/- each as exgratia amount. Those of them sustained simple injuries shall be paid a
sum of Rs.25,000/- each as ex-gratia amount. The above ex-gratia
amount shall be in addition to the compensation already paid to them.
595. The following lawyers/ Court staff who sustained grievous
injuries shall be paid further ex-gratia amount of Rs.1,00,000/-each.
1) K.Sudhan
7) S.Raghu
13) A.Zakir Hussain
2) V.Ramalingam
8) S.Alagarraj
14) B.Dakshinamurthy
(Court Staff)
3) S.V.Karthikeyan,
9) P.Gnana Sekaran
15)P.Balasubramanian
(Court Staff)
4) D.Sivakumar,
10)M.Muneeswaran
16)K.Prabhu
5) S.Anandan
11) D.Anandan
17) R.J.Arjuna
6) R.Bhagawat Krishna
12) N.Gowthaman
18) P.Subramanian
[Totalling Rs.18,00,000/-]
Sl.Nos.1 to 12 .... Advocates; Sl.Nos.14 to 18 – Court Staff.
The following lawyers/court staff/law college students and others who
sustained injuries/simple injuries shall be paid further ex-gratia
491
amount of Rs.25,000/- each.
1)T.Karthikeyan
42)R.Raja
83)G.Sathyaraj
2)K.Jayakannan
43)P.Rajendran
84)P.Chinnadurai
3)J.Kingsly Solomon
44)S.Sankar
85)G.Senthil Kumar
4)N.A.Saidque
45)M.Thomas Acquinas
86)V.Karthikeyan
5)Dr.R.Sampath Kumar
46)A.Mohandoss
87)P.Vijayakanth
6)V.Thirunavukkarasu
47)M.Rajendran
88)R.Kamalakkannan
7)Dr.G.Krishnamurthy
48)S.Sankaranarayana
89)Vellidoss
8)U.Prabhu
49)T.M.Ajin
90)S.Jeevarathina
9)I.Arockia Selvaraj
50)R.Velu
91)Thangapandian
10)A.Singaravelu
51)P.Arivumani
92)M.Mahalingam
11)D.Thirumurthy
52)J.John
93)N.Chandrababu
12)K.Gokulram
53)S.Ananda Kumar
94)V.Srinivasan
13)S.V.Singaravelan
54)R.Vijayakumar
95)R.Sathyamoorthy
14)K.Jayaraman
55)R.Kubendiran
96)T.E.Sampath Kumar
15)J.Karthick
56)V.Selvaperumal
97)T.Baskaran
16)R.Sudhakar
57)S.Immanuvel Thamilselvan 98)M.Rajendran
17)R.L.Saravanan
58)K.Jagannadha Rao
99)R.Sekar
18)R.Sudha
59)S.Arul
100)P.Pooliahpandian
19)L.Sasidharan
60)M.Anbuselvan
101)J.Abdul Malick
20)K.S.Purushothaman
61)S.Nagarajan
102)M.Chennakesavalu
21)T.S.Kanmani
62)M.Mohamed Rafi
103)R.Manickam
22)C.Narayana Ram
63)G.Mohanakrishnan
104)G.Vijayakumar
23)S.Meenakshi Sundaram
64)G.Balakrishnan
105)S.Chandrasekaran
24)R.Suresh Kumar
65)G.Vijaya Balan
106)M.Jahir Hussain
25)S.Siva Sankar
66)J.Pooma Chandran
107)Mrs.Bhuvaneswari
26)C.S.V.Loganathan
67)B.Mohan Raj
108)E.Sivaraj
27)G.Srinivasan
68)T.Senthil Rajan
109)S.Gopi
28)R.Sreerangan
69)P.Madasamy
110)Rajaguru
29)A.K.Kaleel Ahamed
70)R.Murali
111)K.Hemalatha
30)Kayal @ Angayarkanni
71)K.Ramasundaram
112)M.Sekar
31)M.Zainul Abideen
72)S.Kamaraj
113)K.Shanmugam
32)C.Panneer Selvam
73)N.Vijayaraj
114)D.Williams
33)V.Alamelu
74)S.Vijayalakshmi
115)P.Akila
34)S.Ramajayam
75)R.Janagi
116)M.Bharathi
35)M.Karthikeyan
76)V.Amudha
117)Vishwanth Swami
36)A.Anandan
77)R.Arun
118)S.Usha Koshi
78)N.Velayudam
119)N.Selvam
38)M.K.Thiruvengadam
79)M.Jaikumar
120)B.Ellappan
39)C.Ramesh
80)J.N.Nareshkumar
121)M.S.Sivakumar
40)A.Arokiadoss
81)S.Arumugam
41)C.Chandrasekar
82)K.Nagarajan
37)A.Juhilin Jinu
Hebarson
[Totalling Rs.30,25,000/-]
492
Sl.Nos.
1 to 84 ... Advocates;
Sl.No.85 to 89 ... Law College Students; Sl.Nos. 90
to 105 ... Court Staff and Sl.Nos. 106 to 121 ... Others.
596. We direct that the payment of ex-gratia amount shall be in
'full and final settlement' of all the claims of injured persons. On
payment of the said amount no further claim shall lie in this regard.
We
direct
the
State
Government
to
place
further
a
sum
of
Rs.48,25,000/- at the disposal of Registrar General for disbursement
of the ex-gratia amount to the injured persons as indicated above.
597. On 19.02.2009 the Police have also entered into the Law
Association, Small Causes Court, and Madras High Court Advocate
Association [MHAA] and caused extensive damages to the library and
other furnitures. Already an amount of Rs.40,000/- was paid to Small
Causes Court for replacement of damages for Sony LCD TV. We have
also seen the photographs and the damages caused. Having regard to
the damages caused to the above two Associations, an amount of
Rs.5,00,000/- each shall be paid to the Law Association
and MHAA
respectively. [Total Rs.10,00,000/-].
598. The State Government is directed to place at the disposal
of Registrar-General a total sum of Rs.58,25,000/- for being paid to
the injured persons and to the Law Association and MHAA. After paying
the amount, the Registrar General is directed to send report to the
State Government as to amount disbursed.
493
599. We make it clear, apart from the claims so far already
made and the 36 injured persons who have not appeared before the
Hon'ble Committee/Registrar-General (as per the list filed by the
Registry), no fresh claim shall be entertained.
600. SECURITY IN PRINCIPAL SEAT AND MADURAI BENCH:
The revised security Scheme/Plan for Principal Seat with the
strength of 252 Police personnel was inaugurated on 21.1.2009. With
252 Police personnel, the scheme was implemented from 28.1.2009
and 252 Police personnel [in shift] continued in the premises and
discharging their security duty in the respective assigned area.
On
17.2.2009, Dr. Subramaniam Swamy appeared in Court Hall No.III
and was attacked. After the incident on 19.2.2009, Police Force inside
the High Court premises was withdrawn. On 23.4.2009, the Hon'ble
Security Committee directed the Registry to address the State
Government to restore the complement of Police force as it existed
prior to 17.2.2009 with effect from 01.5.2009.
But from 01.5.2009,
only a skeletal complement of Police personnel is being posted inside
the High Court premises at important places.
601. High Court being high Security Zone, as resolved by the
Hon'ble Security Committee, State Government is directed to restore
complement of Police force as it existed prior to 17.2.2009. Lawyers
494
are directed to render all co-operation for implementation of Security
plan as it existed prior to 17.2.2009.
*****
F.M.IBRAHIM KALIFULLA, J.
&
R.BANUMATHI, J.
602. COMMON CONCLUSIONS AND DIRECTIONS:
I. Compensation:(a) It is held that the injured lawyers/court
staff/others who sustained grievous injuries shall be
paid an ex-gratia amount of Rs.1,00,000/- each
(Rupees One lakh only). The injured lawyers/court
staff/others who sustained simple injuries shall be
paid an ex-gratia amount of Rs.25,000/- each
(Rupees Twenty five thousand only).
[Vide List in
Para (595)]. Payment of ex-gratia amount to the
injured
lawyers/court
staff/others
shall
be
in
addition to the compensation amount already paid
to them from and out of the amount already
sanctioned by the State Government.
Payment of
ex-gratia shall be in full and final settlement of
all
the
claims
of
the
injured
lawyers/court
495
staff/others and there shall be no further claim in
this regard.
(b) Law Association and Madras High Court
Advocates
Association
(MHAA)
shall
be
paid
Rs.5,00,000/- each (Rupees Five lakhs) towards the
damages
caused
to
the
Library
and
other
infrastructures of their Associations.
(c) State Government is directed to place
further amount of Rs.58,25,000/- (Rupees Fifty
eight lakhs twenty five thousand) at the disposal of
the
Registrar-General,
High
Court,
Madras
for
disbursement of ex-gratia amount as directed by us
in
Para
(598)
to
the
injured
lawyers/court
staff/others and for payment of damages to the Law
Association and MHAA within six weeks from the
date of this order.
(d)
The
Management
Registrar-General
shall
ensure
and
Registrar-
disbursement
of
the
amount to the injured persons as per the list in Para
496
(595) and to the Law Association and Madras High
Court Advocates Association (MHAA).
(e) No fresh claims shall be entertained apart
from the claims already made before the RegistrarGeneral.
II. Contempt Proceedings:
(a)
Primafacie
case
Mr.Radhakrishnan,then
is
made
out
CoP,
against
Chennai;
Mr.A.K.Viswanathan then Addl. CoP (L&O), Chennai;
Mr.Ramasubramani-then
JCP(North)
and
Mr.Prem
Anand Sinha-then DCP, Flower Bazaar that they have
caused obstruction in the course of administration of
justice
and
contempt
proceedings
have
to
be
necessarily initiated against them.
(b) Contempt notice under Section 15(1) read
with Section 2 (c) (iii) of Contempt of Courts Act is
ordered to be issued to
Mr.K.Radhakrishnan-then
CoP, Chennai; Mr.A.K.Viswanathan-then Addl. CoP,
Chennai; Mr.M.Ramasubramani-then JCP(North) and
497
Mr.Prem Anand Sinha-then DCP, Flower Bazaar for the
following alleged excesses:
(i) for deployment of additional armed
force
inside
19.02.2009,
the
High
after
Court
11.30
campus
am
i.e.
on
after
Dr.Subramaniam Swamy left the High Court
premises and that too without intimation /
permission of the Registry;
(ii) for the act of creating commotion
inside the High Court premises under the
guise
of
attempt
to
arrest
the
accused
advocates and other advocates in between
12.00 noon and 3.45 p.m.;
(iii) for the act of entering the High
Court, City Civil Court, Court of Small Causes,
Family
Court,
Law
Association
premises,
Madras High Court Advocates Association
premises under the guise of chasing the
lawyers;
498
(iv) for the alleged act of causing
extensive damages to the properties inside
the campus such as vehicles, buildings and
association libraries and furniture;
(v) for the alleged act of causing
injuries on the personnel namely the then
sitting Judge of this Court, lawyers, court
staff and litigant public who assembled in the
High Court campus for carrying on their
lawful activities;
(vi) for the alleged acts of interference
in the course of justice by paralysing the
functioning of the High Court on 20th, 23rd and
24th of February, 2009, the functioning of City
Civil Court, Court of Small Causes and other
Judicial Forums located inside the High Court
campus on 20th and 23rd to 27th February,
2009
and
paralysing
the
functioning
of
subordinate Courts throughout the State on
20th, 23rd and 24th February, 2009;
499
(vii) for the alleged act of failure to
withdraw the additional armed forces drawn
into High Court premises inspite of specific
and repeated directions of the Hon'ble Acting
Chief Justice;
(viii) for having filed false affidavits in
this proceedings; and
(ix) for such other acts of the above
contemnors which this Court comes across in
the course of the hearing of the contempt
petition.
(c) No case is made out to initiate Contempt
proceedings against
the Chief Secretary, Home
Secretary, Director General of Police and then Addl.
Director General of Police (L&O) Mr.T.Rajendran.
(d) No case is made out to initiate Contempt
proceedings
against
other
officers
viz.,
Mr.Anup
500
Jaiswal-DGP
(I&T);
Mr.Sunil
Kumar-Addl.
CoP
(Traffic); Mr. Sandeep Rai Rathore-JCP [Central];
Mr.Gunaseelan-JCP (South Zone); Mr.Sarangan-DCP,
Kilpauk;
Mr.S.Panneerselvam-DCP,
Mr.T.S.Anbu-DCP,
Anna
Nagar;
Pulianthope;
Mr.C.Sridhar-DCP,
Adyar; Mr. M.S.Muthusamy-DCP, T.Nagar; Mr.K.Joshi
Nirmal Kumar-DCP (Traffic-South); Mr.ThirugnanamDCP (Traffic-North) and Mr.C.Jayakodi-Inspector of
Police B2-Esplanade Police Station.
Even though, no
prima facie case is made out to initiate Contempt
Proceedings against these Officers, in the Criminal
Case, if the above said Officers are charged as having
committed excess in the incident on 19.2.2009, those
Officers should be proceeded with in accordance with
law both in R.C.No.2(S)/2009/CBI/SCB/Chennai
and also by way of disciplinary proceedings.
III. Directions to the Government:
In as much as the learned Advocate General in
the course of his submissions stated that the State
Government
will
scrupulously
comply
with
the
directions that may be issued for taking any action
501
against
erring
officers,
we
issue
the
following
directions:
(a) In the light of various specific directions
issued in this order, it is up to the State Government
to
consider
whether
Committee
appointed
continuance
of
(Dr.N.Sundaradevan
by
the
State
One
Man
Committee)
Government
should
be
pursued or not.
(b) Having regard to our conclusions holding
that
Mr.Radhakrishnan-then
Mr.A.K.Viswanathan-then
Mr.Ramasubramani-then
CoP,
Addl.
Chennai;
CoP,
JCP(North)
Chennai;
and
Mr.Prem
Anand Sinha-then DCP, Flower Bazaar are responsible
for the incident in the High Court campus on
19.2.2009 and Police excess in violation of statutory
provisions including Police Standing Orders, we direct
the
State
disciplinary
Government
proceedings
to
initiate
against
the
appropriate
above
said
officers and proceed with them in accordance with
law.
502
(c) To enable fair and unbiased enquiry, it will
be in order for the State Government to exercise its
discretion
to
place
the
Mr.Radhakrishnan-then
CoP,
Mr.Viswanathan-then
Addl.
Mr.Ramasubramani-then
Anand
Officers
Sinha-then
Chennai;
CoP,
JCP(North)
DCP,
viz.,
Chennai;
and
Flower
Mr.Prem
Bazaar
under
suspension pending disciplinary action.
(d) In so far as, other Police officers and Police
personnel deployed in the High Court on 19.2.2009, if
in the final report in R.C.No.2/2009/CBI/SCB/
Chennai, are charged as having committed excess in
the
incident
on
19.2.2009,
we
direct
suitable
disciplinary proceedings to be initiated against those
Police officers and personnel also.
IV. Directions to CBI:
(a)
We
investigation
direct
in
CBI
to
proceed
with
the
R.C.No.1(S)/2009/CBI/SCB/
Chennai registered against the lawyers in accordance
with law.
503
(b)
In
so
far
as,
R.C.No.2(S)/
2009/CBI/SCB /Chennai, registered against the
Police,
CBI
is
directed
to
proceed
with
the
investigation in accordance with law.
(c) The CBI shall proceed with the investigation
in both the cases expeditiously and file the final
Report within three months from the date of this
Order.
V. Directions to Registry:(a)
Directions
in
W.P.No.7646/2006
20.6.2006 shall be strictly implemented.
dated
We further
direct that as per the directions of the Supreme Court
in S.L.P. (Civil) No.7540/2009 dated 14.7.2009, there
shall be no procession or Meetings in the Court
verandah or in any part of the Court premises except
within their Association Halls and that too in a
peaceful
manner
in
order
to
ensure
that
the
proceedings of the Court is not in anyway disrupted.
(b)
We
reiterate
the
directions
in
W.P.No.24445/2006 dated 09.10.2006 which led to
504
the
constitution
Committee
in
of
State
Level
G.O.Ms.No.1249
Co-ordination
Home
(Police
IX)
Department dated 28.12.2006.
(c) We direct the Registrar-General to send a
copy
of
the
order
in
W.P.No.7646/2006
dated
20.6.2006 and our directions in these Writ Petitions to
the Bar Council, all the Bar Associations in the
Principal Seat and Madurai Bench and to the District
Judges for being circulated to all the Bar Associations
in the District Courts and in Moffusil Courts for strict
implementation within six weeks from the date of this
order.
VI. Security to High Court:(a) As far as the guidelines issued by the
Government of India for preserving the Security of
this Institution is concerned as per the direction
contained
in
the
letter
No.IV.23014/79/2005/VS
dated 31.5.2007 and the subsequent order dated
17.11.2008 and the steps taken by the Madras High
Court
Security
Committee
revising
the
Security
505
arrangement
system
as
was
implemented
from
28.1.2009, should be restored forthwith.
(b) State Government is directed
to restore
complement of Police force as it existed prior to
17.2.2009
as
resolved by
the
Hon'ble
Security
Committee. Lawyers are directed to co-operate with
the Registry for implementation of Security Plan as it
existed prior to 17.2.2009.
VII. Security to District Courts and other Courts:State
Security
to
throughout
Government
District
the
State
is
directed
Courts
as
and
it
to
restore
other
Courts
existed
prior
to
19.02.2009.
603. We have dealt with the issues, keeping in view the
public interest, interest of the Police, interest of the lawyers and
above all, interest of the Institution.
Though, we have found
fault with some of the Officers, it should not be taken to mean
that the whole Police Force is at fault. While we have found fault
with certain Officers, in the same breath, we have also found
fault with the lawyers for their continued boycotts and how it
506
caused inconvenience to the public at large. We wish that Police
and lawyers would bury their differences and rift in the interest of
the public at large and in the interest of the Institution. Both the
lawyers and Police, the two wings of the Institution should always
work together for the administration of justice.
Functioning of
Courts and carrying on business of administration of justice
depends upon the harmonious relation between the Police and
lawyers. We wish that better counsel will prevail upon the Police
and lawyers. We hope that Police and lawyers work hand in hand
and promote better relationships.
We also feel that it may be
appropriate for the Police and lawyers to constitute
their
respective Committees both at State level/District level to resolve
the differences in an amicable manner.
604. With the above directions and observations, all the
Writ
Petitions
are
disposed
off
except
Suo
Moto
W.P.No.3335/2009 which shall be called along with the Contempt
proceedings to be initiated as directed in this Order. Since CBI
has registered the case in R.C. No.2 (S)/2009/CBI/SCB/Chennai,
the
Criminal
O.Ps.
are
dismissed
as
infructuous.
Consequently, all the connected M.Ps. and M.P.S.Rs. are closed.
No costs.
507
605. The CDs filed and marked on either side [CD-P1 to P5
and CD-R1 & R2] and other CDs and documents shall form part
of record and ordered to be kept along with the records in safe
custody.
606.
Likewise,
the
call
log
particulars
filed
by
Mr.A.K.Viswanathan-Addl. CoP along with his counter shall form
part of record and ordered to be kept along with the other
records.
607. CBI is permitted to peruse the CDs and records and if
need be, copy of records and CDs may also be furnished to CBI to
facilitate the investigation.
608. We place on record the valuable assistance rendered
by Mr.P.S.Raman, learned Advocate-General; learned Senior
Counsel Dr.Rajeev Dhavan; and Mr.Raja Kalifullah, Government
Pleader. We also place on record the co-operation extended by
Mr.V.Selvaraj, Mr.P.N.Prakash and Mr.Swaminathan who argued
onbehalf of some of the Police Officers.
508
609. We also place on record the co-operation of the
lawyers in general and in particular Mr.S.Prabakaran, President
TNAA, Mr.R.C.Paul Kanagaraj, President, MHAA, Ms.R.Vaigai,
Senior
Counsel
Mr.R.Krishnamurthy,
Senior
Counsel
Mr.T.V.Ramanujam, Mr.N.G.R.Prasad and Mr.V.Raghavachari.
(F.M.I.K.,J.)
(R.B.I.,J)
29.10.2009
Index : Yes
Internet : Yes
kk/bbr
509
F.M.IBRAHIM KALIFULLA, J.
and
R.BANUMATHI, J.
kk/bbr
COMMON ORDER
in W.P.Nos.3335, 3703, 3704,
3705 and 3910/2009 and Connected
M.Ps. and M.P.S.Rs. & Crl.O.P.
Nos.4085, 4287 and 4434/2009
29.10.2009