Raju Chacko v. City Police Commissioner, Ernakulam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY,THE 13TH DAY OF MARCH, 2019/22ND PHALGANA, 1940** ## **OP.No. 5485 of 1998** ## **PETITIONER:** **RAJU CHACKO, PUTHETH HOUSE, BYPASS ROAD, PADIVATTOM, KOCHI - 24.** **BY ADV. SRI.P.B.KRISHNAN.** ## **RESPONDENTS:** 1. **CITY POLICE COMMISSIONER, ERNAKULAM.** 2. **THE ASSISTANT COMMISSIONER OF POLICE, THRIKKAKARA.** 3. **THE DIRECTOR GENERAL OF POLICE, TRIVANDRUM.** 4. **STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIATE, TRIVANDRUM.** BY SR.GOVT.PLEADER SRI.P.P.THAJUDEEN. **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON** **15.02.2019, THE COURT ON 13.03.2019 DELIVERED THE FOLLOWING:** O.P.NO.5485 OF 1998 :-2-: ## **J U D G M E N T** ## **N.ANIL KUMAR,J:** Petitioner is one of the share holders of a private limited company under the name and style M/s.Highway Garden Drive-in Private Limited registered under the Indian Companies Act. It is running a hotel in the Bypass road at Padivattom, Ernakulam. 2. The facts, in brief, are that on 19.2.1988, the petitioner, who was in his residence, received a communication that the Assistant Commissioner of Police, Thrikkakara accompanied by his team moved into the hotel and conducted a raid there with the assistance of more than 2 dozen police officers. One of the rooms was checked by the Police party and nine persons were found therein engaged in playing cards. According to the petitioner, he was not present in the hotel at the time of conducting the search. As soon as the petitioner reached the hotel, he was told that the police was inside the room,where the search was conducted. The room was given on rent to Mr.P.N.Mohanan, Chief Engineer, Sage Group Architects,Engineers and Consultants at Kalamassery. By about 9 p.m. all the nine persons were taken into custody by the Police. By about 9.30 p.m. the petitioner was also taken to the Kalamassery Police Station. It is alleged O.P.NO.5485 OF 1998 :-3-: that the petitioner was taken away even without the knowledge of his father, who was a Senior Advocate practising in the High Court and his brother, the Executive Director of the company. The complaint of the petitioner is that the petitioner and others were unnecessarily detained at the Police Station without being granted bail though the petitioner's father was ready and willing to furnish sureties to enlarge the petitioner on bail. It is further alleged that the arrest of the petitioner was in violation of the guidelines issued by the Supreme Court and the petitioner was released on bail only on 20[th] February,1998 noon. Hence the petitioner has filed the writ petition seeking the following reliefs:- - “1. declare that the arrest of the petitioner by the respondents on the 19[th] February,1998 and his detention in the Kalamassery Police Station have unduly wrong and the refusal of the 2[nd] respondent to give him bail inspite of the offence charged against him being bailable are all totally unauthorised, highhanded and beyond the powers of the respondents. 2. to direct the respondents to pay compensation to the petitioner for the serious wrong done to him by unauthorisedly and falsely implicating him in a case and detaining him illegally after an illegal arrest. 3. issue a writ of mandamus directing the Director General of Police to conduct a proper enquiry into the representation Ext.P2 and all matter subsequent thereto including subject matter of Ext.P5 press statement of first respondent. 4. to issue a writ of mandamus forbearing the respondents from unnecessarily harassing the petitioner in any manner by conducting frequent raids in his hotel without any ostensible reason.” O.P.NO.5485 OF 1998 :-4-: 3. The first respondent is the then Commissioner of Police, Kochi city. He filed counter affidavit contending that the petitioner was an accused in crime No,.57/1998 of Kalamassery Police Station for the offence punishable under Sections 7 and 8 of the Kerala Gaming Act,1960 (hereinafter referred to as 'the Kerala Act'). During the search, the Assistant Commissioner of Police, Thrikkakkara detected the offence and arrested the petitioner along with nine others, who were found indulged in gambling in Room No.107 of the hotel and seized `37811/- and 52 numbers of playing cards among other things. All the accused were taken to Kalamassery Police Station after preparing the seizure mahazar and Crime No.57/98 was registered for the offences under Sections 7 and 8 of the Kerala Act. The accused were arrested at 9.15 p.m, seizure mahazar was prepared immediately after the arrest and the case was registered at 12 midnight, the accused were questioned, their statements were recorded and they were released on bail within 24 hours after observing all the legal formalities. 4. The second respondent is the then Assistant Commissioner of Police, Thrikkakkara. He filed a counter affidavit dated 31.3.1998 in support of the contentions raised O.P.NO.5485 OF 1998 :-5-: by the first respondent in the counter affidavit. He stated that no sureties turned up for the release of the accused while they were taken to the Police Station and hence, all the accused were kept in the Police Station till they were released on bail at 12.30hrs. on 20.2.1998. According to him, the accused were arrested in accordance with law and the case was registered against them for the offences under Sections 7 and 8 of the Kerala Act. 5. The second respondent filed a separate affidavit on 13.5.1998 and produced Exts.R2(a) to R2(d) contending that after filing the original petition, the Government had transferred the second respondent by Government Order dated 24.4.1998. He contended that this had been issued only because of his action in not releasing the petitioner and other persons, as requested by the then Advocate General of Kerala and then Deputy Inspector General of Police, Ernakulam Range. 6. He also filed an additional affidavit on 25.5.1998 wherein he reiterated that his transfer was only because of his action in not releasing the petitioner and other persons as disobedience of the orders of the then Advocate General of Kerala and the then Deputy Inspector General of Police, Ernakulam Range. He admitted that the Director General of O.P.NO.5485 OF 1998 :-6-: Police by proceedings No.33219/98 dated 12.5.1998 had directed the Commissioner of Police, Kochi City to delete the name of the petitioner from the array of the accused in Crime No.57/1998 of the Kalamassery Police Station. It is stated in the letter under reference that the enquiry conducted revealed the innocence of the petitioner and he was arrested without any evidence. He also stated that the Director General of Police had not conducted any investigation in the case. According to him, the final report was filed before the court and the direction of the Director General of Police to delete an accused from the crime after laying the chargesheet is totally incorrect. As long as the investigation had not been taken over by a superior officer, according to him, it was wrong on the part of the superior officers to interfere with the investigation. He stated that the Circle Inspector of Police, who was in charge of the investigation, had been thereafter transferred to three places within a span of one month. 7. Heard Sri.P.B.Krishnan, the learned counsel for the petitioner and Sri.P.P.Thajudeen, the learned Senior Government Pleader. 8. During the pendency of the proceedings, an interim order was passed by this Court on 6.4.1998. The interim order reads as follows:- O.P.NO.5485 OF 1998 :-7-: “Heard both sides. 2. There will be a direction to the 3[rd] respondent Director General of Police, Trivandrum to conduct an investigation either by him or through an officer above the rank of the first respondent in regard to the subject matter highlighted in Ext.P2 representation and Exts.P5 and P6 press statements and submit a report to this Court with utmost dispatch. Post on the reopening week.” 9. In paragraph 3 of the affidavit dated 25.5.1998, the second respondent contended that the report submitted by the Deputy Inspector General of Police, CBCID, as directed by the Director General of Police pursuant to the interim order issued by this Court is biased and has been prepared as directed by the then Advocate General of Kerala, who has nursed a grudge against the second respondent for not having complied with his directions, which are totally illegal and against all principles of law. 10. Pursuant to the search conducted at the hotel, as per Ext.R2(a), the then Commissioner of Police City, Kochi addressed Ext.R2(b) letter to the petitioner appreciating his good work in detecting an offence from a hotel within his jurisdiction. In Ext.R2(a), the first respondent stated that it is natural that when a Police Officer touches influential people in the city, they will try to harass such Police Officer in so many ways and hence, the petitioner should not get disheartened when faced with such a situation while doing the O.P.NO.5485 OF 1998 :-8-: right jobs. The first respondent also appreciated the second respondent that law is equally applicable to everybody. Per contra, the Deputy Inspector General of Police Ernakulam Range issued a memo to the second respondent requiring him to explain within three days why the accused persons in Crime No.57/1998 of Kalamassery Police Station for the offences punishable under Sections 7 and 8 of the Kerala Act were not released on bail in violation of all instructions given by the Deputy General of Police and the Advocate General over phone. The second respondent submitted Ext.R2(d) reply to the Deputy Inspector General of Police, Kochi range stating that the action of the Advocate General, in giving illegal directions to the Police cannot be justified and such interference may affect the normal functioning of the Police. 11. First Information Report registered at the Police Station would show that in accordance with search conducted under Section 5 of the Kerala Act, Police registered FIR for the offences punishable under Section 7 and 8 of the Keala Act against the petitioner and other accused. It was disclosed from Ext.R2(a) that an amount of `37,811/- was recovered along with 52 cards from the occurrence place. Section 6 of the Kerala Act declares the law that any card, dice etc. seized on search by the authorised officer shall be evidence until the O.P.NO.5485 OF 1998 :-9-: contrary is proved. Hence, the second respondent was fully justified in registering a case under Sections 7 and 8 of the Gaming Act. In **Ramachandran.K.** v. **C.I.of Police Perinthalmanna** [2019 (1) KHC 627] DB, this Court held that if the police authorities have specific information or reasonable doubt that the activities made by the club or its members are not in accordance with law or they indulge in the unlawful activities in violation of the provisions of the Kerala Gaming Act or any other enactment, it would be open to them, after recording reasons in the general diary maintained in the Police Station to proceed to enter into the club premises, conduct investigation, interrogate those, who involve themselves in such unlawful activities and take appropriate action on merits as per law. This Court also held that in a case where the club is used as a gaming house for playing rummy for stakes and all the persons physically present there are found playing rummy, then they are certainly accused in the eye of law, provided the Detecting Officer has complied with Section 5 of the Kerala Act before conducting such raid or inspection in the club. In this case, Ext.R2(a) General Diary Entry would indicate that the accused in the aforesaid crime allegedly involved in playing 'pannimari', which is a kind of gambling as defined under the O.P.NO.5485 OF 1998 :-10-: Kerala Act. 12. Compensation to victims is a well-known principle of law being implemented as a matter, of course, through the competent civil courts. When it comes to tortious liability, the victims are generally at liberty to claim compensation for the injury to the person or property suffered by them through civil courts. Considering the fact that civil cases are pending for years, it takes decades for the victims to get their grievances redressed by way of damages or compensation through civil courts, which results in untold hardships to the victims. To undo the hardships, the principles of compensation for the infraction of the rights enshrined under Article 21 of the Constitution were considered by the Apex Court in the decisions reported in **Khatri and others(II)** v. **State of Bihar and others** [(1981)1 SCC 627], **Sant Bir** v. **State of Bihar** [(1982)3 SCC 131], **Miss Veena Sethi** v. **State of Bihar and others** [(1982)2 SCC 583] and **D.K.Basu** v. **State of West Bengal** [(1997) 1 SCC 416]. In **Rudul Sah** v, **State of Bihar and another** [(1983)4 SCC 141], the Supreme Court granted compensation to a victim for keeping him in illegal detention for over 14 years after his acquittal of a murder case. This was followed in **Sebastian.M.Hongray** v. **Union of India and others** [(1984) 1 SCC 339]. In **Nilabati Behera** v. **State of Orissa and** O.P.NO.5485 OF 1998 :-11-: ## **others** [(1993)2 SCC 746] the Supreme Court observed as follows:- “....................It may be mentioned straight away that 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.............”. 13. Based on the above legal principles, it is contended that the writ court has jurisdiction to award compensation in appropriate cases for the contravention of the right guaranteed under Article 21 of the Constitution of India. 14. As stated earlier, the learned counsel for the petitioner relied on the decision reported in **S.Nambi Narayanan** v. **Siby Mathews and others** [ILR 2018(3) Kerala 935] wherein the above factual matrix was adjudged and held that the lackadaisical attitude of the State Police to arrest anyone and put him in Police custody warrants grant of compensation under the public law remedy. The sum and substance of the contention is that merely because a civil suit can be filed to claim compensation, the same shall not debar the constitutional court to grant compensation taking recourse to public law. 15. The compensatory jurisprudence introduced by the Supreme Court of India by invoking powers under Art.32 of O.P.NO.5485 OF 1998 :-12-: the Constitution of India is undisputed. In this case, it is brought out that the petitioner was an accused in Crime No.57/98 of Kalamassery Police Station. According to the investigating officer, he was implicated after complying with all the procedural formalities. Whether the petitioner was implicated in the crime after complying with the procedural formalities is a separate matter to be decided after taking evidence. According to the petitioner, he was absent at the scene of occurrence and he was implicated falsely. However, Respondents 1 and 2 maintained that he was physically present and his arrest was recorded. It is true that the offences under Sections 7 and 8 of the Kerala Act are cognizable and bailable. Merely because the offences are bailable, it does not stand in the way of questioning the accused immediately after recording the arrest. It was disclosed that the petitioner was released within 24 hours from the time of arrest on bail. The learned counsel for the petitioner contended that the accused was taken illegally into the police station though his father was present with sureties for enlarging him on bail. However these facts are seriously disputed by Respondents 1 and 2. As and when the sureties are produced, according to respondents 1 and 2, the petitioner was released on bail and that too after recording O.P.NO.5485 OF 1998 :-13-: his statement. From the facts, it is clear that the then Deputy Inspector General of Police and the then Advocate General of Kerala intervened in the matter. We have our own doubt regarding the competency of high dignitaries to intervene in a criminal case during investigation. It is also clear from the affidavit of second respondent that the petitioner was found innocent after filing the charge sheet before court by the investigating officer. In the reply affidavit filed by the petitioner, these facts are disputed. When a matter with disputed facts is placed before the constitutional court for consideration, it is not correct to take up the issue and decide the matter without taking evidence. We make it clear that we have no doubt in our mind that when disputed questions of facts arise for consideration, the remedy available to the petitioner is to approach the civil court for resolving the disputed question of facts and law after a full and satisfactory adjudication. Without adverting to private law remedy, the petitioner has filed this writ petition alleging violation of fundamental rights and claimed compensation through writ jurisdiction under Art.226 of the Constitution. The decisions cited by the learned counsel for the petitioner for compensation under Art.226 of the Constitution in respect of the violation of fundamental rights are not applicable in this case. In this O.P.NO.5485 OF 1998 :-14-: case, the alleged infringement of the fundamental right is a disputed question of fact. There is nothing on record to show that the infringement of fundamental right is incontrovertible and ex facie glaring. In such circumstances, we are of the view that this is not a fit case for granting compensation through public law remedy under Article 226 of the Constitution of India. In **M.C.Mehta and** ## **another** v. **Union of India and others** [(1987) 1 SCC 395] that the Supreme Court held as follows:- _“..........The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh and oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil courts........”_ In view of the foregoing discussions made, we are of the view that the writ petition is liable to be dismissed. Hence this writ petition is dismissed without prejudice to the rights and liberties of the petitioner to take his remedy to appropriate forum in accordance with law. Sd/- ## **P.R.RAMACHANDRA MENON** , JUDGE sd/- ## **N.ANIL KUMAR** , JUDGE MBS/ O.P.NO.5485 OF 1998 :-15-: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** EXT.P1: COPY OF CIRCULAR DTD.26.8.94 OF DGP. EXT.P2: COPY OF PETITION DTD.23.2.98 FILED BY THE PETITIONER BEFORE THE DGP. EXT.P3: COPY OF PAPER REPORT IN RASHTRA DEEPIKA DTD.23.2.98. EXT.P4: COPY OF LAWYER NOTICE DTD.16.3.98 SENT BY EXECUTIVE DIRECTOR OF PETITIONER'S HOTEL. EXT.P5: COPY OF PAPER REPORT IN DESABHIMANI DTD.14.3.98. EXT.P6: COPY OF PAPER REPORT IN MATHRUBHUMI DTD.143.1998. EXT.P7: COPY OF PAPER REPORT IN INDIAN EXPRESS DTD.15.3.1998. EXT.P8: COPY OF REPLY NOTICE DTD.21.3.98 SENT BY THE 1ST RESPONDENT. ## **RESPONDENTS' EXHIBITS:** EXT.R2(a): TRUE COPY OF THE GD EXTRACT OF KALAMASSERY POLICE STATION DTD. 19.2.1998. EXT.R2(b): TRUE COPY OF THE LETTER RECEIVED FROM THE COMMISSIONER OF POLICE DTD.20.2.1998. EXT.R2(c): TRUE COPY OF THE MEMO NO.3028/CAMP/98ER DTD.2/98. EXT.R2(d); TRUE COPY OF THE EXPLANATION NO.423/T/98/TS DTD.21.2.1998.