M.K. Subramanian and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **THURSDAY, THE 6TH DAY OF SEPTEMBER 2012/15TH BHADRA 1934** ## **OP.No. 14052 of 1998 (W)** ## **------------------------** ## **PETITIONER(S): -----------------------** **1. M.K. SUBRAMANIAN, S/O.M.K. KITTUVAIDYAN, 34/2000,** **EDAPPALLY, COCHIN-24.** **2. SOMASEKHARAN NAIR.V., RETIRED EXECUTIVE ENGINEER, ANITHAS, PANAMPILLY NAGAR, COCHIN -16.** **3. CHARLY RODRIGUES, GENERAL MANAGER, COCHIN ROLLER FLOWER MILLS, NATIONAL HIGHWAY, KALAMASSERY.** **4. BHASKARAN.P., M/S.PIPE DISTRIBUTORS, 38/250,** **T.D.ROAD, COCHIN-682 035.** **5. P.V.ABDUL JABBAR, VASANTH NAGAR FF.6, BLOCK 4 FLAT NO.22: PALARIVATTOM, COCHIN-25.** **6. PETER. E.J., CONTRACTOR, LISIE ROAD,** **NEAR LISIE JUNCTION, COCHIN- 18.** **7. S. RAMACHANDRAN, B-2, FORTH FLOOR, AMBADI APARTMENT, WARRIAM ROAD, COCHIN -16.** **8. ABRAHAM PAUL MATHEW, 46/2873-A, INDIRA NAGAR,** **KALOOR, COCHIN -17.** **9. A.D. JOSE, 44/553, LINK AVENUE,** **KALOOR, COCHIN -17.** **10. K.G. THAMPI, M.D., AJANTHA TRAVELS, P.B.NO: 1660,** **M.G.ROAD, COCHIN -15.** ## **BY ADVS. SRI.N.SUKUMARAN, SRI.S.SHYAM.** ## **OP.No. 14052 of 1998 (W)** ## **RESPONDENT(S):** ## **--------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY,** **SECRETARIAT, THIRUVANANTHAPURAM.** **2. CITY POLICE COMMISSIONER, COCHIN CITY, COCHIN -31.** **3. DR.JACOB THOMAS, SUPERINTENDENT OF POLICE,** **C.B.C.I.D, TRIVANDRUM.** **4. ASST. COMMISSIONER OF POLICE, LAW AND ORDER, ERNAKULAM.** **5. SUB INSPECTOR OF POLICE, SPECIAL CRIME SQUAD, COCHIN CITY.** **6. DIRECTOR GENERAL OF POLICE, TRIVANDRUM.** **R1, R2 & R4 TO R6 BY GOVT. PLEADER MR.EGY N.ELIAS. R3 BY ADVS. SRI.JOY GEORGE, SMT.PRAICY JOSEPH, SRI.N.K.KARNIS.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **OP.No. 14052 of 1998 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE REMAND REPORT FILED BEFORE THE JUDL. FIRST CLASS MAGISTRATE COURT NO.II, ERNAKULAM DATED 11/01/1998 IN CRIME NO.27/98 OF CENTRAL POLICE STATION, ERNAKULAM. EXT.P2 COPY OF THE CRIME REPORT (FIR) DATED 11/01/1998 FILED BEFORE THE JUDL. FIRST CLASS MAGISTRATE COURT NO.II, ERNAKULAM IN CRIME NO.27/98. EXT.P3 COPY OF THE CIRCULAR ISSUED BY THE 6TH RESPONDENT DATED 17/08/1994.** **EXT.P4 COPY OF THE COMPLAINT SENT BY THE 1ST PETITIONER TO THE HUMAN RIGHTS COMMISSION DATED 01/1998.** **EXT.P5 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE 6TH RESPONDENT DATED 30/01/1998.** **EXT.P6 COPY OF THE REPORT DATED 31/08/2009 SUBMITTED IN CRIME NO.27/1998 OF THE SUPT. OF POLICE, CRIME BRANCH CID, ERNAKULAM. EXT.P7 COPY OF THE ORDER IN EXT.P6 DATED 14/11/2000 OF THE JUDL. FIRST CLASS MAGISTRATE COURT NO.II, ERNAKULAM.** **EXT.P8 COPY OF THE ORDER OF THE HONOURABLE HIGH COURT OF KERALA IN CR. M.C. NO.2165/2001(A) DATED 28/09/2001.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R3A COPY OF THE F.I.R. IN CRIME NO.420/1997. EXT.R3B COPY OF THE CIRCLE INSPECTOR ON CR. NO.420/1997. EXT.R3C COPY OF THE MINUTES OF THE MEETING DATED 05/08/1997. EXT.R3D COPY OF THE DGP DATED 20/01/1998. EXT.R3E COPY OF THE DRUNKENNESS CERTIFICATES OF THE ACCUSED. EXT.R3F COPY OF THE FIR IN CR. NO.158/1998 OF CENTRAL POLICE STATION.** ## **//TRUE COPY//** **P.S. TO JUDGE** ## **rs.** C.K.ABDUL REHIM,J. ------------------------------OP.NO. 14052 of 1998 --------------------------------Dated this the 6th day of September, 2012 ## JUDGMENT This writ petition is filed by 10 persons who are members of Rama Varma Club, Ernakulam, a club established as early as in the year 1897, having about 1200 membership at present. Majority of the members are professionals, prominent persons and high dignitaries in the society. On 10.1.1998 at about 10.30 p.m. when the petitioners and other members were playing cards in the Card Room at the club, a contingent of police headed by respondents 3 and 4 arrested them along with the President and Secretary of the club, alleging that the petitioners were seen playing game named 'Rummy'. President of the club was Dr.P.Ramakrishnan, who is a senior Doctor working in a private hospital in Kochi city. The police party had arrested some other persons from a private room in the club alleging that they were seen consuming liquor served illegally. It is alleged that the police party had created a scene and disrupted functioning of the club for about two hours. The arrested persons OP. 14052/98 2 were taken to the police station at about 11.50 p.m. and all of them were taken to General Hospital for conducting blood test at about 5.30 a.m. on the next day morning. A criminal case was registered as per Ext.P2 FIR and the petitioners along with others were produced before the Magistrate Court by filing Ext.P1 remand report. The learned Magistrate had granted bail to all the accused. 2. Allegations in the writ petition is that the raid conducted and the registration of the criminal case was motivated by vindictive attitude of the 3[rd] respondent against the Rama Varma Club. It is pointed out that, eventhough the imputation in Ext.P2 against the petitioners was only with respect to offence punishable under the Kerala Gaming Act, they were also implicated as accused in the case registered with offence punishable under section 63 of the Abkari Act. This, according to the petitioners, was only with a malafide intention of getting the petitioners remanded into custody. Further allegation is that the police had acted in a high handed manner without following any of the mandatory conditions in the matter of arrest in OP. 14052/98 3 criminal cases, as held by the Hon'ble Supreme Court, as enumerated in Ext.P3 circular issued by the Director General of Police. It is alleged that the petitioners were ill treated and put to severe harassment in a manner infringing their personal liberty, freedom and dignity and in violation of human rights protected under the Constitution and other statutes. About the incident the petitioners sent a telegram to the Chairman of the State Human Rights Commission and a detailed complaint was submitted to the Hon'ble Minister for Home Affairs, Government of Kerala. Since no action was taken even to conduct an enquiry against the 3[rd] respondent, this writ petition is filed seeking the following reliefs:- - _a) call for the records relating to Exts.P1 to P3 and P5 from the respondents._ - _b) issue a writ of mandamus commanding respondents 1 and 6 to initiate proper and prompt action against the 3[rd] respondent on the basis of the complaints raised in Ext.P5._ - _c) issue a writ of mandamus to respondents 1 and 6 to implement the directions of the Hon'ble Supreme Court and circulated in Ext.P3 in letter_ OP. 14052/98 4 _and spirit and take appropriate and prompt actions against the 3[rd] respondent and similar others violating those directions._ - _d) issue a writ of mandamus to the 3[rd] respondent to pay adequate compensation to the petitioners for the damages caused to them by him in violating their fundamental and human rights in the process of their unlawful arrest and detention._ 3. During pendency of this writ petition the investigation of Ext.P2 case was completed. Ext.P6 is the copy of final report filed before the Magistrate Court. It disclosed that the case was referred as one registered on mistaken facts. Sri.N.Sukumaran, learned senior counsel appearing for the petitioners, had drawn my attention to the findings and conclusions in Ext.P6, which indicate that the investigating agency was convinced of the fact that the allegations levelled against the accused were not true and correct. However, learned Magistrate had refused to accept the final report and ordered a further investigation, as per Ext.P7 order. But the petitioners challenged Ext.P7 before this court in a Criminal Miscellaneous Case and in Ext.P8 judgment the said OP. 14052/98 5 order was quashed. 4. It is contended that there occurred clear breach of fundamental rights of the petitioners due to the high handed and arbitrary actions on the part of respondents 3 and 4 and other officials. It is also contended that the actions on the part of those respondents had resulted in clear infringement of human rights protected. Arguments were advanced appealing for interference of this court to award compensation under public law for the tortuous acts and patent infringement of fundamental rights and violation of human rights committed by the respondents. In this regard, reliance was placed on the judgment of the Hon'ble Supreme Court in **D.K.Basu vs. State of West Bengal (1997 (1) SCC 416)** . Facts of the said case relates to custodial death of a person. The Hon'ble Supreme Court observed as follows:- _“The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the_ OP. 14052/98 6 _claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.”_ 5. On the facts of the case at hand it is evident from Ext.P2 that the imputation against the petitioners was only with respect to playing 'rummy' which is alleged as an offence punishable under the Kerala Gaming Act. But they were also taken for OP. 14052/98 7 medical examination and implicated as accused in a case registered for offence punishable under the Abkari Act. From the factual matrix revealed in Ext.P6 final report it is evident that the police party who arrested the petitioners and registered the case had fabricated false evidences and purposefully arrested the members of the club, who are responsible persons avocated in various professions and holding high positions in the society. The final report indicate that the petitioners were arrested and implicated in a false case, even on fabrication of materials and evidences which are not true and correct. 6. Averments in the writ petition is pointed against the 3[rd] respondent who was officiating as City Police Commissioner, Cochin City. A detailed counter affidavit has been filed by the third respondent in which it is stated that, on that day he went to the club only on getting information from the police officials that while conducting the raid two higher officials in the rank of Deputy Superintendent of Police were also seen involved in the crime and they escaped from the scene of occurrence. He had denied all other allegations of ill motive and enmity against the club. It is stated that he had no role in the investigation and all OP. 14052/98 8 further actions were conducted only by the 4[th ] respondent. Even the crime was registered not by the 3[rd] respondent, is the contention. 7. On th basis of facts and circumstances narrated as above, I am of the view that this Court in exercise of power vested under Article 226 cannot venture upon any adjudication on the disputed facts regarding involvement of the 3[rd] respondent or on the aspects of malafide motives alleged against the 3[rd] respondent or any other officials in registering the case and in arresting the petitioners. Learned counsel appearing for the 3[rd] respondent had brought to my notice that the 3[rd ] petitioner in this writ petition had already filed a civil suit claiming damages before the Sub Court, Ernakulam, which was unsuccessful. A copy of the judgment in the suit was also made available for my perusal. Learned senior counsel appearing for the petitioners on the other hand contended that, even assuming that a suit filed by one of the petitioners was dismissed, the same will not preclude remedy of other petitioners in seeking compensation. He also pointed out that a petition was filed for deleting the 3[rd] petitioner from the OP. 14052/98 9 party array. 8. Even if it is established that the petitioners were implicated in a false case and that the respondents and other police officials have acted in a totally illegal, unauthorized and arbitrary manner which resulted in causing infringement to fundamental rights, freedom, dignity and liberty of the petitioners and that they have caused ill treatments and humiliations to the petitioners, all those are matters for which effective remedy is available under different statutes. For an adjudication on the veracity of such allegations appreciation of factual evidence and materials is inevitable. The petitioners could have set law into motion by exercising their rights under private law remedy. This writ petition was filed at a time when the investigation of the case was going on. Even though the writ petition was filed as early as in the year 1998, inspite of production of copy of the final report and Ext.P8 judgment, the petitioners have not chosen to amend the writ petition to formulate any prayers on the basis of the final report. Nor there is evidence to show that any appropriate proceedings has been initiated apart from filing of a civil suit by one of the petitioner, which was unsuccessful. OP. 14052/98 10 9. Therefore, I am of the considered opinion that this is not a fit case where extraordinary jurisdiction of this Court can be invoked to award compensation under public law remedy. At the same time, liberty if any available to the petitioners under law to seek appropriate relief has to be reserved. Therefore, the writ petition fails and the same is liable to be dismissed. 10. However, this is a case where there is clear evidence of patent inaction on the part of the State and its officers responsible, against a serious allegation of violation of human rights. It is pertinent to note that, inspite of pendency of the case before this Court for so many years, the Government have not filed any counter affidavit answering allegations of inaction on the basis of Ext.P5 complaint. In the counter affidavit of the 6[th] respondent there are only a formal denial of the allegations and also a denial of the malafides attributed against the 3[rd] respondent. Even though various steps taken as part of the investigation is narrated, nothing is mentioned about receipt of Ext.P5 or the fate of such a complaint submitted by the OP. 14052/98 11 petitioners. It is serious to take note of the fact that the investigating agency, the superintendent of Police, CB CID(CSF), in Ext. P6 final report indicated that the criminal case was registered on the basis of materials and evidence fabricated in order to implicate the petitioners as accused. Therefore, I am of the considered opinion that the matter need an enquiry at the Government level. Action against officials if any responsible for fabricating a false case is warranted, even at this point of time, is my firm opinion. 11. Therefore the writ petition is disposed of directing the State Government to conduct an enquiry through any responsible and trustworthy officer of the State police force, not below the rank of Addl. Director General of Police, to ascertain as to whether any of the police officials were responsible for registering Ext.P2 case and in arresting the petitioners by fabrication of materials and evidence and also to ascertain as to whether there was any illtreatment, humiliation and harassment to the petitioners and other accused in a manner infringing their fundamental rights and violation of human rights. The enquiry should also be extended to the aspect as to whether such officials had taken sufficient steps OP. 14052/98 12 to ensure that all the conditions necessary to be followed in the matter of arrest was followed or not. The enquiry should be made based on materials collected during investigation with emphasis to the conclusions enumerated in the final report. The Enquiry Officer should also afford opportunity for reply and personal hearing to the petitioners as well as to the officials concerned. 12. Needless to say that necessary action shall be followed from the State Government on the basis of the enquiry report if it is found that any of the officers are guilty of the actions taken. The enquiry in this regard shall be ordered and completed within a period of four months from the date of receipt of a copy of this judgment. The Registry is directed to forward a copy of this judgment to the Principal Secretary to Government, Home Affairs, State of Kerala, for necessary compliance. ## C.K.ABDUL REHIM, JUDGE ## pmn/ OP. 14052/98 13 OP. 14052/98 14