Vishnu v. State of Kerala, Kerala State Human Rights Commission & Bijumon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941 WP(C).No.25833 OF 2019(D)** ## **PETITIONER:** **VISHNU, AGED 29 S/O.LATE VIJAYAKRISHNAN, NANDHANAM HOUSE, POOTHAKATTUKUNNU, WANDOOR P.O, MALAPPURAM DISTRICT, FORMER SUB INSPECTOR OF POLICE, KOLATHOOR POLICE STATION, MALAPPURAM DISTRICT, KERALA.** **BY ADV. SRI.SHAJIN S.HAMEED** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN CODE-695001. 2 KERALA STATE HUMAN RIGHTS COMMISSION, REPRESENTED BY ITS CHAIRPERSON, TURBO PLUS JUNCTION, P.M.G.JUNCTION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN CODE-695033. 3 BIJUMON, S/O.THANKAPPAN, KALATHINKAL HOUSE, ODAKKAL, KADAKKARAPPALLY P.O., CHERTHALA, ALAPPUZHA DISTRICT, PIN CODE-688529.** **R2 BY ADV. SRI.A.DINESH RAO R3 BY ADVS. SRI.JOSEPH RONY JOSE SRI.E.A.JOSE** ## **OTHER PRESENT:** ## **SR.GP.SRI.TEK CHAND FOR R1** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C).25833/2019 2 “ **C.R.** ” ## **JUDGMENT** Dated this the 28[th] day of November, 2019 S.Manikumar, CJ Being aggrieved by the decision made in HRMP No.8202/17/PLP dated 11.1.2019 on the files of Kerala State Human Rights Commission, Thiruvananthapuram, fixing the responsibility on the writ petitioner and others, for failing to keep the tipper lorry bearing Reg. No.KL-17-D-2437 in proper custody and the direction issued to the State Police Chief to take action against the writ petitioner and others, and for payment of compensation of Rs.30,000/- to be given to the complainant, respondent No.3, instant writ petition is filed. 2. Short facts leading to the filing of writ petition are that,- Tipper lorry bearing Registration No.KL-17-D-2437 owned by the 3[rd] respondent was seized alleging transportation of river sand. Being aggrieved, 1[st] respondent filed W.P.(C) No.26293 of 2015 before this Court and vide judgment dated 01.09.2015, this Court directed the Revenue Divisional Officer, Perinthalmanna, to check the sand and take action on the basis of the report. On examination, it was found that the sand is not river W.P(C).25833/2019 3 sand. The Geologist reported that if the complainant/3[rd] respondent pays an amount of Rs.25,000/- as fine, the vehicle would be returned to him. Hence, the Revenue Divisional Officer, Perinthalmanna, ordered to return the vehicle to the 3[rd] respondent. According to the 3[rd] respondent, the same was not done on the ground that a criminal case was pending before the jurisdictional Magistrate. He was constrained to approach the Revenue Divisional Officer, Perinthalmanna, once again for release of the vehicle. 3. The Revenue Divisional Officer, Perinthalmanna, passed another order directing release of the vehicle stating that pendency of a criminal case before the learned Magistrate is not a bar. When the complainant/3[rd] respondent approached the Sub Inspector of Police, Kolathoor, he was directed to produce Kaicheetu. On 09.02.2016, when the complainant approached the concerned police station, he found that four wheels, tyres, tubes, discs, batteries starter, tools etc., were missing from his vehicle. When the 3[rd] respondent/complainant informed the said fact to the writ petitioner, he replied to take the vehicle by replacing new wheels and batteries. According to the 3[rd] respondent, the value of the vehicle was Rs.6 lakhs and the lost parts would be Rs.1 lakh. The 3[rd] respondent has further alleged that the writ petitioner has threatened him by stating that he would register a crime against him for obstructing his official duty. On W.P(C).25833/2019 4 the above averments, the 3[rd] respondent has preferred a complaint to Kerala State High Rights Commission, Thiruvananthapuram, which was registered as Complaint HRMP No.8202/17/PLP (Exhibit-P1). On receiving the complaint, Kerala State Human Rights Commission, called for a report from the Deputy Superintendent of Police, Kerala State Human Rights Commission/Investigating Officer. He recorded the statement of the 3[rd] respondent as well as the writ petitioner and submitted a report to the Kerala Human Rights Commission (Exhibit-P2). Investigating Officer/Deputy Superintendent of Police, Kerala State Human Rights Commission has reported that the vehicle of the 3[rd] respondent was seized on 29.02.2015 and kept in the old police station compound, which is 3 kms away from the present police station. On 11.01.2016, when the 3[rd] respondent/ complainant went to the police station for release of the vehicle, police took a stand that the vehicle could not be released, because a criminal case was pending against him before the learned Magistrate. When the complainant/3[rd] respondent went to the police station with the order of the Sub Collector dated 05.02.2016, he found that the tyres and other accessories were missing from the vehicle. The Deputy Superintendent of Police, Kerala State Human Rights Commission, Thiruvananthapuram, in his report has further stated that writ petitioner took charge as Station House W.P(C).25833/2019 5 Officer only on 17.02.2016. The Deputy Superintendent of Police in his report has further stated that on 29.09.2016, when the complainant/3[rd] respondent approached the police station for release of the vehicle, the same was not released, but the writ petitioner after obtaining signature in the Kaicheetu, forwarded the same to the Revenue Divisional Officer, Perinthalmanna. The Deputy Superintendent of Police, Kerala State Human Rights Commission, Thiruvananthapuram, has further stated that when the 3[rd] respondent/complainant approached the higher authorities, petitioner registered Crime No.104 of 2016 alleging offence under Section 379 of the IPC, for the loss of parts of seven vehicles, including the vehicle owned by respondent No.3, and later-on, final report in the criminal case was laid before the jurisdictional Magistrate, as 'undetected'. The Deputy Superintendent of Police, Kerala State Human Rights Commission, Thiruvananthapuram, has recommended that departmental proceedings be initiated against the officers, who were responsible for not safely protecting the vehicle of the complainant/3[rd] respondent, after seizure, and for recovery of compensation from the officers responsible. 4. Writ petitioner appeared before the Kerala State Human Rights Commission, Thiruvananthapuram, and submitted his objection contending, inter alia, that he joined Kolathoor Police Station only on 17.12.2016 and he W.P(C).25833/2019 6 worked there for a period of one year and three months. After one year and three months, he was transferred to Thenjippalam Police Station. Writ petitioner has further submitted that one Mr. N.P.Muralidharan was the previous Sub Inspector of Police, Kolathoor, who had seized the tipper lorry bearing Reg. No.KL-17-D-2437 with river sand from Vadakkumpuram Kadavu on 29.05.2015 and Crime No.354 of 2015 was registered under Section 379 of the IPC and Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002. 5. Before the Kerala State Human Rights Commission, Thiruvananthapuram, writ petitioner further contended that on receipt of the complaint, he examined the vehicles parked at the old police station, and found that tyres and mechanical parts of 7 lorries, which were parked in the compound, were missing, which includes the vehicle owned by the 3[rd] respondent/complainant. He registered a case in Crime No.104 of 2016 under Section 379 of the IPC. Writ petitioner has further stated that he has no nexus with the case of the 3[rd] respondent/complainant as he had joined duty only on 17.02.2016. 6. Before Kerala State Human Rights Commission, writ petitioner further stated that there is no violation of human rights. W.P(C).25833/2019 7 7. Adverting to the above pleadings and submissions, Kerala State Human Rights Commission, Thiruvananthapuram, has recorded a finding that among other policemen, writ petitioner was also responsible for the loss of the parts of the vehicle viz., tipper lorry bearing Reg. No. KL-17-D2437 and thus, fixed responsibility on him also. Kerala State Human Rights Commission has issued further directions, stated supra. 8. Order of Kerala State Human Rights Commission, Thiruvananthapuram (Exhibit-P5) is assailed on various grounds. Referring to the date on which the vehicle was seized, i.e. 29.02.2015, the date on which respondent No.3 visited the police station and further visit on 11.2.2016, and Exhibit-P2 report of the Deputy Superintendent of Police, Kerala State Human Rights Commission/Investigating Officer, Mr.Shajin S.Hameed, learned counsel for the writ petitioner, submitted that the complainant/3[rd] respondent had visited the police station on 05.02.2016 for release of the vehicle, which, according to him, was not given, and from the version of the 3[rd] respondent/complainant that on 09.02.2016, when he had approached the police station for releasing the vehicle, it was found that all the four wheels, tyres, tubes, discs, batteries starter etc., were missing from the vehicle, it is apparent that even before the writ petitioner took charge as Sub Inspector of Police, Kolathoor Police Station, the parts were W.P(C).25833/2019 8 missing and in such circumstances, fixing the responsibility on the writ petitioner for loss of parts of the vehicle along with other policemen in the police station and consequently, directing the State Police Chief to take action against the petitioner coupled with recommendation for payment of compensation is liable to be set aside. 9. Per contra, Mr.Joseph Rony Jose, learned counsel for the 3[rd] respondent/complainant before the Kerala State Human Rights Commission, submitted that investigation conducted by the Deputy Superintendent of Police, Kerala State Human Rights Commission, categorically reveals that the parts of the tipper lorry bearing Reg. No. KL-17-D-2437 owned by the 3[rd] respondent were lost and that policemen, in whose custody the vehicle was kept, were responsible for the same and, therefore, prayed to sustain the order in HRMP No.8202/17/PLP dated 11.01.2019 (Exhibit-P5). 10. Heard learned counsel for the parties and perused the material available on record. 11. Question to be decided is whether, the writ petitioner was responsible for the loss of parts of the vehicle and whether, he should be responsible to make good the loss and pay compensation. W.P(C).25833/2019 9 12. Indisputably, vehicle was seized on 29.05.2015 by the Sub Inspector of Police, Kolathoor Police Station, on the allegation that river sand was illegally transported. Being aggrieved, 3[rd] respondent/complainant has filed W.P.(C) No.26293 of 2015. This Court directed the Revenue Divisional Officer, Perinthalmanna, to check the sand and to take action on the basis of the report. The Revenue Divisional Officer ordered to return the vehicle. The 3[rd] respondent/complainant has submitted that when he went to the police station on 11.01.2016, the vehicle was not returned on the ground that a criminal case is pending against him before the learned Magistrate. 13. Again the 3[rd] respondent/complainant approached the Revenue Divisional Officer. He ordered for the release of the vehicle, as per judgment in W.P.(C) No.26293 of 2015 dated 01.09.2015, stating that pendency of a criminal case before the learned Magistrate is not a bar. Thereafter, when he approached the police on 09.02.2016, he found that four wheels, tyres, tubes, discs, batteries starter, tools etc., were missing. Hence, a complaint was preferred to the Kerala State Human Rights Commission. The 3[rd] respondent/complainant has visited the police station on 05.02.2016 and on 09.02.2016, is admitted. Thus, as early as on 09.02.2016, he has found that the abovesaid parts were missing. But, W.P(C).25833/2019 10 solely impleading the officer on duty as Sub Inspector of Police, Kolathoor Police Station, Malappuram District, on 17.02.2016, he has lodged a complaint before the Kerala State Human Rights Commission, which was taken on record as HRMP No.8202/2017. 14. Even in Exhibit-P2 investigation report, the Deputy Superintendent of Police, Kerala State Human Rights Commission, has categorically recorded that writ petitioner was the Station House Officer of Kolathoor Police Station between 17.02.2016 and 15.05.2017. Thus, it is abundantly clear from the above that the parts were missing even before the petitioner had joined duty as Station House Officer of Kolathoor Police Station on 17.02.2016 and that at any stretch of imagination, on the facts and circumstances of the case, as projected by the 3[rd] respondent, and on the report by the Investigating Officer/Deputy Superintendent of Police, Kerala State Human Rights Commission, writ petitioner cannot be held responsible for the loss of the parts of tipper lorry bearing Reg. No. KL-17D-2437. Finding of the Kerala State Human Rights Commission, holding that the writ petitioner was also responsible among other policemen for the loss of the parts, is perverse, erroneous and not supported by any acceptable evidence. At this juncture, we deem it fit to consider a few decisions on perversity. W.P(C).25833/2019 11 (i) In **Arulvelu v. State** reported in **(2009) 10 SCC 206** , the Hon'ble Supreme Court, at Paragraphs 27, 29 and 30, explained what "perverse" means, "27. The expression "perverse" has been defined by various dictionaries in the following manner: 1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE: Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. 2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable. 3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. 4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. 5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. ...... 29. In **Kuldeep Singh v. The Commissioner of Police** , (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: W.P(C).25833/2019 12 "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with." 30. The meaning of `perverse' has been examined in **H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312** , this Court observed as under: "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or W.P(C).25833/2019 13 perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law." (ii) In **S.R.Tiwari v. Union of India** reported in **(2013) 6 SCC 602** , at Paragraph 30, the Hon'ble Supreme Court, held as follows: "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/ inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and W.P(C).25833/2019 14 which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with." (iii) In **State of NCT of Delhi v. Sanjeev** reported in **(2005) 5 SCC 181 = AIR 2005 SC 2080** , the Hon'ble Supreme Court observed thus, ".......to characterize a decision of the administrator as "irrational'' the Court has to hold, on material, that it is a decision "so outrageous'' as to be in total defiance of logic or moral standards." (iv) In **State of A.P., v. Abdul Khuddus** reported in **(2007) 15 SCC 261** , the Hon'ble Supreme Court, at Paragraph 12, held that, "the High Court, while reversing the findings of the Special Court could also not come to a conclusion of fact that the respondents had perfected their title in respect of the schedule land by adverse possession or that the schedule land belonged to Gandhi Hill Society. Such being the position, we are unable to sustain the order of the High Court, which had set aside the findings of fact arrived at by the Special Court, which, in our view, were arrived at on consideration of the materials on record and which, by any stretch of imagination, cannot be said to be based on no evidence or surmises or conjectures and therefore, it was not open to the High Court, in the exercise of its writ jurisdiction, to set aside the findings of fact arrived at by the Special Court which were based on sound consideration of the materials on record." W.P(C).25833/2019 15 (v) In **The General Manager (P) Punjab & Sind Bank v. Daya Singh** reported in **(2010) 11 SCC 233** , at Paragraph 24, the Hon'ble Supreme Court, held as follows: "24. Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge-sheeted employee. But the present case was certainly not one of that category. Once the charges were found to have been established, the High Court had no reason to interfere in the decision. Even though there was sufficient documentary evidence on record, the High Court has chosen to hold that the findings of the enquiry officer were perverse. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni Rubber & Plastics v. CCE, AIR 1994 SC 1341. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arilvelu v. State, 2009 (10) SCC 206. The decision of the High Court cannot therefore be sustained." 15. In the light of the decisions quoted, we are of the view that the decision of Kerala State Human Rights Commission, Thiruvananthapuram, is squarely covered by the above decisions. The 3[rd] respondent/complainant has not impleaded any other policemen in HRMP No.8202/17/PLP. Though the writ petitioner was not responsible for the loss of the parts, direction has been issued to the State Police Chief to take action against him and W.P(C).25833/2019 16 recommendation has been made for compensation of Rs.30,000/- to be paid to the 3[rd] respondent/complainant by the writ petitioner among other policemen, which, on the fact and circumstances of the case, are liable to be set aside, insofar as the writ petitioner is concerned. In the light of the above discussion, decision made in the order dated 11.01.2019 in HRMP No.8202/17/PLP by Kerala State Human Rights Commission as against the writ petitioner is set aside in entirety. It is open to the 3[rd] respondent/complainant to approach the Civil Court, if so advised, for appropriate remedies, in accordance with law. ## Sd/- **S.MANIKUMAR, CHIEF JUSTICE** Sd/- **A.M.SHAFFIQUE, JUDGE** Krj.30/11 //TRUE COPY// P.A. TO JUDGE W.P(C).25833/2019 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE COMPLAINT HRMP NO.8202/17/PLP FILED BY THE 3RD RESPONDENT BEFORE THE HONOURABLE KERALA STATE HUMAN RIGHTS COMMISSION ALONG WITH ITS ENGLISH TRANSLATION.** - **EXHIBIT P2 PHOTOCOPY OF THE INVESTIGATION REPORT SUBMITTED BY THE DEPUTY SUPERINTENDENT OF POLICE ALONG WITH ITS ENGLISH TRANSLATION.** - **EXHIBIT P3 PHOTOCOPY OF THE NOTICE DATED 12.11.2018 ISSUED BY THE KERALA STATE HUMAN RIGHTS COMMISSION TO THE PETITIONER ALONG WITH ITS ENGLISH TRANSLATION.** - **EXHIBIT P4 PHOTOCOPY OF THE OBJECTION SUBMITTED BY THE PETITIONER ALONG WITH ITS ENGLISH TRANSLATION.** - **EXHIBIT P5 PHOTOCOPY OF THE ORDER DATED 11.01.2019 PASSED BY THE KERALA STATE HUMAN RIGHTS COMMISSION ALONG WITH ITS ENGLISH TRANSLATION.** - **EXHIBIT P6 PHOTOCOPY OF THE NOTICE DATED 08.03.2019 ISSUED BY THE KERALA STATE HUMAN RIGHTS COMMISSION ALONG WITH ITS ENGLISH TRANSLATION.** ## **RESPONDENTS' EXHIBITS:-NIL**