Sarojam Surendran v. State of Kerala 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** **THURSDAY,THE 21ST DAY OF FEBRUARY, 2019 / 2ND PHALGUNA, 1940** **WP(C).No. 35332 of 2018** ## **PETITIONER:** **SAROJAM SURENDRAN, AGED 55 YEARS, W/O SUNDARAN, VELIPARAMBIL, H4/882, NORTH CHERLAI, MATTAMCHERY KOCHI-682002.** **BY ADV. SRI.K.R.SUNIL** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE STATE POLICE CHIEF, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM.** - **3 THE TRAVANCORE DEVASWOM BOARD, HEAD OFFICE, NATHANCODE, THIRUVANANTHAPURAM, PIN - 605 003, REP. BY ITS SECRETARY.** **BY ADVS.** **R1 & R2 by SRI.K.V.SOHAN, STATE ATTORNEY R3 by SRI.S.RAJMOHAN, SC for TDB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **11.02.2019, THE COURT ON 21.02.2019 DELIVERED THE FOLLOWING:** WP(C) NO.35332 OF 2018 :-2-: ## **WP(C) NO.35332 OF 2018** ## **CASE REPORTABLE** ## **JUDGMENT** ## **N.ANIL KUMAR,J:** Petitioner has filed this writ petition seeking the following reliefs:- - “1. To issue a writ in the nature of Mandamus commanding the respondents to pay a sum of `2 lakhs to the petitioner either jointly or severally for the physical injury suffered by the petitioner and the mental agony she went through upon the police atrocity committed at Pamba Ganapati Temple on 17.10.2018. 2. To issue writ, directions or orders directing the Ombudsman Travancore Devaswom Board, to conduct an enquiry into the police actions on the evening hours on 17.10.2018 at the premises of Pamba Ganapathy Temple. 3. Such other reliefs deem fit on facts and in the interest of justice. 4. To issue writs, orders or directions to declare that all actions took by the 1[st] and 2[nd] respondent or through their Subordinate Officers in gross violation of the binding mandates issued by the Hon'ble Supreme Court in 2009(5) SCC 212 and followed by Koshy Jacob v. Union of India and others in W.P(C) NO.55/2017 is declared to illegal, null and void nonest as against the petitioner in Crime No.259 of 2018, of Pamba Police Station.” ## 2. The facts in brief are stated hereinbelow:- Smt.Sarojam Surendran, aged 55 years claims that she is an ardent devotee of Lord Ayyappa and so are the rest of his family members. Her husband had visited the Sabarimala Temple situated at the mystic hills of Sabarimala, several WP(C) NO.35332 OF 2018 :-3-: times during his life. The popular shrine, which is opened for just 128 days each year, is visited by tens and thousands of pilgrims annually. From the Pamba river basin, pilgrims must trek 5 kms. through a steep forest path to reach the temple perched atop the 'Periyar Tiger Reserve'. The shrine opens for the 41 days Mandala Pooja every year. On 17.10.2018, when the Sabarimala temple, which is the abode of Lord Ayyappa, opened for the poojas, the petitioner, her husband and a group of other devotees, reached Pamba, which is the holy river at the foothills of Sabarimala at around 2.30 p.m. They saw various bhajan groups of devotees at various places of Pamba chanting bhajans. The petitioner along with her husband walked in and around the Pamba Ganapathy temple as the shores of Pamba had been ravished by the devastating floods in Kerala. After that, they sat on a cement pavement situated at least ten feet away from the road which led to the starting point of trekking path towards the Sabarimala shrine. At about 5 O'clock in the evening, suddenly, several dozens of Policemen arrived at that spot and the Police without prior notice charged with lathis against the devotees, who were chanting bhajans. The petitioner could not resist the Police outrage and she was forcefully thrown into a Police vehicle by a policeman. WP(C) NO.35332 OF 2018 :-4-: When she was hit on her forehead with stones pelted by the policemen, she collapsed on the cement floor near the police van. The Police tried to pull and drag the petitioner to the Police vehicle, which however ended up in her sustaining other injuries. According to the petitioner, entire incident was masterminded by the Police to create a breach of law and order to justify invocation of power under Section 144 Cr.P.C. on the following days by the Government. The petitioner was taken to the Pamba Government Hospital and was given her primary treatment, where she had to cry aloud for a drop of water for her basic needs. The toilet was without water supply. Thus, it is alleged that the State is liable for the physical injury and the mental agony suffered by the petitioner, as the State has a duty and responsibility to curb, control and keep the police to its permissible limits. Quantifying the loss sustained to her due to the fall and injuries inflicted as a result of police atrocities at Rupees Two lakhs and for the mental agony she had suffered and continues to suffer, an amount of Rupees One lakh more is claimed. Petitioner also filed Ext.P3 request to the Ombudsman seeking to enquire into the Police actions on 17.10.2018 at the premises of Pamba Ganapathy Temple. WP(C) NO.35332 OF 2018 :-5-: 3. The District Police Chief, Pathanamthitta, filed counter affidavit on behalf of respondents Nos.1 and 2 in this writ petition stating that the petitioner is the BJP Mandalam Secretary, Kochi and she came to Pamba in a mini bus along with more than 30 persons and obstructed the real devotees proceeding to Sannidhanam challenging the judgment of the Supreme Court, which declared that women of any age like men are entitled to enter and pray at Sabarimala temple. When Police attempted to remove the illegal obstructors, they started to lay themselves on the road. The Police only removed the violators of law and those 'namajapam' obstructors, who laid themselves spread on the road. According to the first respondent, the petitioner came with large number of persons in groups obstructing genuine devotees, which ultimately led to the issue of prohibitory order under Section 144 Cr.P.C. The petitioner, who participated and acted as a leader of the group, which obstructed the devotees was party to the violence perpetrated near Pamba Guard room. Five persons, who accompanied the petitioner, had been arrested in connection with the crime No.259/2018 of Pamba Police Station. After verification of the video recording and photographs, the role of the petitioner was revealed and hence, the Police added the WP(C) NO.35332 OF 2018 :-6-: petitioner as accused in the aforesaid crime. It is also stated that the petitioner is not entitled to get any damage for the injury sustained to her. On the other hand, the State is entitled to recover damages for the loss caused to the Police vehicles and injuries sustained to the Policemen. 4. When this case came up for consideration on 5.11.2018, this Court directed the State as well as the third respondent- the Devaswom Board to file their version with regard to the grievances projected by the petitioner and also as to the relief sought for in particular at relief No.1. With regard to the second prayer to cause an enquiry through the Ombudsman, the learned Amicus Curiae submitted before this Court that the Ombudsman had already informed the position in crystal clear terms to the petitioner that the Ombudsman does not have any power or jurisdiction with regard to the nature of relief sought for. Accordingly, the case was listed for hearing. 5. Respondents 1 and 2 filed additional statement before this Court in accordance with the direction of this Court dated 14.1.2019. It is contended that the writ petitioner was a person, who participated in the illegal agitation against the judgment of the Supreme Court in **Indian Young Lawyers** WP(C) NO.35332 OF 2018 :-7-: **Association** v. **State of Kerala** [2018(4) KLT 373 (SC)]. The petitioner is also an accused in a case of causing damage to public property. It is also contended that the writ petition is not maintainable before this Court for the relief of personal claim for damages. 6. Heard the learned counsel for the petitioner, Sri.K.V.Sohan, the State Attorney and Sri.S.Rajmohan, the Standing Counsel for the Travancore Devasom Board. 7. The learned State Attorney Sri.K.V.Sohan placed on record Ext.R1(a) letter issued by the Government of India, Ministry of Home Affairs [Internal Security- I Division] to the Chief Secretaries of Kerala, Tamil Nadu and Karnataka and the Director General of Police, Kerala, Tamil Nadu and Karnataka inviting attention to arrange comprehensive security arrangements at Sabarimala Shrine on the date of its opening for monthly rituals on 17.10.2018, in the backdrop of the State Government's decision to implement the recent judgment of the Supreme Court to allow women of all ages to visit the shrine, which invited wide-spread protests against the same from various quarters. It is also stated therein that certain civil/women's rights activists, Left parties/fronts and pro-LWE groups have been campaigning in favour of women's entry into WP(C) NO.35332 OF 2018 ## :-8-: the shrine and actively using women to do so on 17.10.2018. Separately, Ayyappa devotees, Hindu outfits and certain castebased outfits have been organizing State-wide protest against the Supreme Court judgment. In view of the above, the Ministry of Home Affairs requested to take all necessary precautionary measures to maintain law and order and make appropriate security arrangements in order to prevent any untoward incident, adding that appropriate prohibitory orders be issued and a close watch be kept on dissemination of adverse information through social media and internet services. 8. According to the State Attorney, taking into consideration the conduct of the petitioner and her associates, with the intention of obstructing genuine devotees, the District Collector, Pathananmthitta was constrained to issue Exts.R1(b) and R1(c) prohibitory orders under Section 144 Cr.P.C. at Sabarimala. 9. 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 WP(C) NO.35332 OF 2018 :-9-: 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 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.............”. 10. Based on the above legal principles, it is contended that the writ court has jurisdiction to award compensation in WP(C) NO.35332 OF 2018 ## :-10-: appropriate cases for the contravention of the right guaranteed under Article 21 of the Constitution of India. According to the learned counsel for the petitioner, respondents 1 and 2 thoroughly failed in following the binding mandates issued by the Supreme Court in **Destruction of Public and Private Properties in Re.** v. **State of Andhra Pradesh and others** [(2009)5 SCC 212] and followed by **Koshy Jacob** v. **Union of India and Others** [(2018) 11 SCC 756]. 11. 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. 12. In this case, the facts are different. Ext.R1(a) would show that in fact, the Government of India issued letter to the Chief Secretary of Kerala based on intelligence information WP(C) NO.35332 OF 2018 :-11-: that Ayyappa devotees, Hindu outfits and certain caste-based outfits have organized State-wide protest against the Supreme Court order in **Indian Young Lawyers Association's Case** (supra) and a direction was issued to take all necessary precautionary measures to maintain law and order. It is also brought out that the petitioner, who participated and acted as a leader of the group, which obstructed the devotees, was an accused in Crime No.259/2018 of Pamba Police Station along with others. Similar other violent acts organised by the protesters at Nilakkal and Pamba led to the declaration of prohibitory order under Section 144 Cr.P.C. from the midnight of 17.10.2018 to the midnight of 22.10.2018. Resultantly, the District Magistrate, Pathanamthitta issued Exts.R1(b) and R1(c) prohibitory orders dated 17.10.2018 and 19.10.2018 under Section 144 Cr.P.C. respectively. Thereafter, the prohibitory order issued was extended from time to time. The prohibitory order issued under Section 144 Cr.P.C. was challenged before this Court. After having heard all the parties, this Court found that there is no justifiable ground to interfere with the prohibitory order under Section 144 issued by the District Magistrate, Pathanamthitta, for the time being taking into consideration of the intelligence report as cautioned by the Government of India in the matter and all other circumstances prevalent at Sabarimala. We notice that WP(C) NO.35332 OF 2018 :-12-: the decision of this Court dated 21.11.2018 after considering a batch of petitions on Sabarimala issue in WP(C)Nos. 37645,37713, 37742, 37746, 37751 and 37760 of 2018 is relevant in this context. _“..............in view of the contents of the letter of the D.G.P., which is put on record, and the submissions made by the learned Advocate General, we make it clear that the order dated 15.11.2018 passed by the District Magistrate (challenged in the writ petitions) will not stand in the way of any genuine pilgrim, in proceeding to Sabarimala either as individual or as groups and also in chanting 'saranamanthras', which shall not be prevented by the Police..................”_ ## This Court further clarified as follows:- _“............However, as mentioned already, if anybody wants to rupture or ruin the peaceful atmosphere prevailing there and cause any breach of peace, it is open for the police to identify such persons and take appropriate action against them in accordance with the relevant provisions of law.”_ 13. This Court thus held that prohibitory order under Section 144 Cr.P.C. was issued with the intention of ensuring smooth pilgrimage without hindrance. In view of the above facts, the circumstance warranting to issue prohibitory orders issued by the District Magistrate, Pathanamthitta under Section 144 Cr.P.C. cannot be reagitated in this writ proceedings. 14. The learned counsel for the petitioner highlighted the injuries sustained by the petitioner and the treatments prescribed by the doctor at Taluk Headquarters Hospital at WP(C) NO.35332 OF 2018 :-13-: Kochi. Ext.P2 is the wound certificate issued. On going through Ext.P2, no serious injuries are noted. Even according to the petitioner, she reached Pamba at 2.30 p.m. Conventionally, Sabarimala temple and Sannidhanam will open at 5 p.m. However, the petitioner along with others remained at Pamba from 2.30 p.m onwards. No plausible explanation is offered as to why the petitioner remained at Pamba though she could have proceeded to Sannidhanam after the ritualistic bath at Pamba, to be present at Sannidhanam at the time of opening of the temple at 5 p.m. It is disclosed from the counter affidavit that the Police has recorded the entire seen in the CCTV camera installed in front of the Devaswom Guard room and the facts are readily available from video footage. It is also difficult to believe that around 5 O'clock in the evening, suddenly several dozens of policemen had arrived at Pamba and the Police started to charge with lathis against the devotees, who were chanting bhajans without any provocation and thereby, the petitioner and others sustained injuries. It appears that the petitioner was taken to the Government Hospital at Pamba and given medical treatment. After having given first aid from Pamba hospital as revealed by the Police, it is disclosed from Ext.P3 that the petitioner reached Fort Kochi WP(C) NO.35332 OF 2018 :-14-: only on 25.10.2018 which is evident from Ext.P2. It took a considerable time to get follow-up treatment as per Ext.P2. Where was the petitioner between 17.10.2018 and 25.10.2018 as revealed from Ext.P3 is not explained. Available facts and circumstances would show that the injury alleged to have sustained to the petitioner is a minor injury and the Police extended first aid at the Government Hospital, Pamba, which was functioning in a temporary shed as the original Pamba hospital was damaged in the devastating flood in Kerala. 15. Relying on **Koshy Jacob** v. **Union of India and Others** [2018(1) KHC 160], the learned counsel for the petitioner submitted that inspite of the guidelines issued by the Supreme Court in **Destruction of Public and Private Properties in Re** v. **State of Andhra Pradesh and others** [(2009)5 SCC 212], situations have been created wherein an innocent devotee sustained injuries in the occurrence and as such, the Police is prima facie guilty and is liable to pay compensation. 16. The compensatory jurisprudence introduced by the Supreme Court of India by invoking powers under Art.32 of the Constitution of India is undisputed. However, in respect of writ petitions of disputed facts, usually the Supreme Court or the WP(C) NO.35332 OF 2018 :-15-: High Court does not take up the issues relating to disputed facts in writ proceedings. In this case, the petitioner sustained a minor injury on 17.10.2018. According to the respondents, the petitioner and others obstructed genuine devotees challenging the judgment of the Supreme Court in **Indian Young Lawyers Association Case** . It is further contended that when the Police attempted to remove the illegal obstructors, they started to lie on the road and pelted stones against the police. The Police removed the violators of law and those chanting 'Namajapam' using reasonable force. The respondents contended that the entire scene was recorded in the CCTV cameras and facts can be verified from the video footage. Further, the petitioner is an accused in Crime No.259/2018 of Pamba Police Station. One of the allegations levelled against the petitioner is that she instigated and participated in the act of obstruction and violence near Guard room at Pamba. 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 and law arise for consideration, the remedy available to the WP(C) NO.35332 OF 2018 ## :-16-: 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 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........”_ WP(C) NO.35332 OF 2018 :-17-: 17. On going through the facts of the case, none of the circumstances stated above is attracted in this case. In **Koshy Jacob's case** (supra), the Supreme Court clearly stated as follows:- “As far as the individual claim of the petitioner is concerned, the organisers of the agitation are not before this Court. The petitioner is at liberty to take his remedy at appropriate forum in accordance with law. ….....” In this case, the organisers of the agitation are not before this Court. They are not parties to the proceedings. In the result, this writ petition is dismissed, without prejudice to the rights and liberties of the petitioner to take her remedy at appropriate forum in accordance with law. Sd/- **P.R.RAMACHANDRA MENON** , JUDGE sd/- **N.ANIL KUMAR** , JUDGE MBS/ WP(C) NO.35332 OF 2018 :-18-: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE INJURIES SUSTAINED BY THE PETITIONER AT PAMBA.** **EXHIBIT P2 THE INJURIES SUFFERED AND THE TREATMENTS PRESCRIBED BY THE DOCTOR OF TALUK HEAD QUARTERS HOSPITAL, FORT KOCHI DATED 25/10/2018.** **EXHIBIT P3** **THE TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE OMBUDSMAN TRAVANCORE DEVASWOM BOARD DATED 29/10/2018.** ## **RESPONDENTS' EXHIBITS:** Ext.R1(a): TRUE COPY OF THE LETTER ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS (INTERNAL SECURITY DIVISION) DTD.16.10.2018. Ext.R1(b): TRUE COPY OF THE PROHIBITORY ORDER DTD.17.10.2018 UNDER SECTION 144 CR.PC. ISSUED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. Ext.R1(c): TRUE COPY OF THE PROHIBITORY ORDER DTD.19.10.2018 UNDER SECTION 144 CR.P.C. ISSUED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA.