W.P(C).42536/2022

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** # **`&`** # **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA, 1944 WP(C) NO. 42536 OF 2022`** ## **`PETITIONERS:`** ``` 1P.A.LALAN THARAKAN AGED 79 YEARS, S/O AVIRA THARAKAN, PARRAI HOUSE, EZHUPUNNA, ALAPPUZHA DISTRICT. PIN - 688 537. 2P.H. HORMIS THARAKAN AGED 60 YEARS, S/O P.A HORMIS THARAKAN, PARRAI PUTHANVEETIL HOUSE, EZHUPUNNA, ALLAPUZHA DISTRICT. PIN - 688 537. ``` ``` BY ADVS. SRI. RENJITH THAMPAN (SR.) SRI. V.M.KRISHNAKUMAR SMT.MAYA M. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT , THIRUVANANTHAPURAM – 695001. 2SECRETARY DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695001. ``` ``` 3THE STATE POLICE CHIEF POLICE HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM – 695014. ``` ``` 4THE COMMISSIONER OF POLICE OFFICE OF COMMISSIONER OF POLICE, CV RAMAN PILLAI RD, THYCAUD, THIRUVANANTHAPURAM – 695014. ``` _**W.P(C).42536/2022**_ 2 ``` 5THE DISTRICT POLICE CHIEF OFFICE OF DISTRICT POLICE CHIEF, PALAYAM, THIRUVANANTHAPURAM – 695034. ``` ``` 6REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM. PIN – 682031 ``` ``` BY ADVS. SHRI.N.MANOJ KUMAR, STATE ATTORNEY - R1 TO R5 SHRI. V.A MUHAMMED-R6 ``` ## **`OTHER PRESENT:`** ``` SHRI. K R RANJITH, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**W.P(C).42536/2022**_ 3 ## J U D G M E N T ## Dated this the 16[th] day of March, 2023 ## S. Manikumar, CJ Having regard to the material on record and the reliefs sought for, this Court has passed a series of orders from 23.12.2022. Order dated 23.12.202 reads thus: “In this writ petition, the petitioners have sought for the following reliefs: - “i. Issue a writ in the nature of mandamus commanding the 1[st] Respondent to appoint Nodal Officers in every districts of the State of Kerala as mandated in Exhibit P1 judgment for being answerable for the occurrence of violence under the guise of peaceful protest; - ii. Issue a writ in the nature of mandamus directing the 3[rd] Respondent to ensure that reports of violence under the guise of peaceful protest including damages, caused to the 1[st] Respondent as well as public and private properties and the cost incurred for controlling the violence is submitted to the 1[st] respondent, as directed by the Exhibit P1 judgment, within such time as may be fixed by this Hon'ble Court; - iii. Issue a writ in the nature of mandamus directing the 1[st] Respondent to prepare a report on the police reports and other information that may be available to it and file a detailed report in the High Court or Kerala as the case may be for affording the High Court of Kerala as mandated in Ext.P1 judgment to take suo motu action as mandated in Ext.P1 _**W.P(C).42536/2022**_ 4 judgment within such time as may be fixed by this Hon'ble Court; - iv. Issue a writ in the nature of mandamus commanding the 6[th] Respondent to bring to the notice of this Hon'ble Court the reports filed by the State Government on the basis of directions contained in Ext.P1 judgment, so as to afford an opportunity for this Hon'ble Court to initiate suo moto action as directed in Ext.P1 judgment within such time as may be fixed by this Hon'ble Court. - v. Issue a writ in the nature of mandamus commanding the 1[st] Respondent to give wide publicity of the modalities to be followed in order to ensure proper prevention of mob violence under the guise of peaceful demonstration by the Hon'ble Supreme Court in Exhibit P1 judgment and to ensure that such directions are strictly followed throughout the State of Kerala.” 2. Mr. K.P. Harish, learned Senior Government Pleader, seeks time to get instructions. Post in the third week of January 2023.” ## 2. On 30.1.2023, we passed the following order: “Referring to the various portions of the decision of the Hon’ble Supreme Court in **Kodungallur Film Society and Another v. Union of India and Others** reported in **2018 (5) KHC 297** , as regards measures, awarding of compensation, action to be taken in the case of mob violence, etc., and also to the contents in the statement filed along with the writ petition, Mr. Ranjith Thampan, learned Senior Counsel appearing for the petitioners, submitted that the directions in the abovesaid decision of the Hon’ble Apex Court have not _**W.P(C).42536/2022**_ 5 been implemented in letter and spirit by the respondents and, therefore, the reliefs sought for should be granted. 2. In this context, he also invited our attention to Annexure-R4(a) Circular No.24/2018 dated 05.09.2018 and submitted that the said circular has been issued on the basis of the judgment of the Hon’ble Apex Court dated 17.07.2018 in **Tehseen S. Poonawalla v. Union of India** [W.P.(C) No.754 of 2016] and that the said circular is anterior to the decision of the Hon’ble Apex Court in **Kodungallur Film Society** ’s case (cited _supra_ ). 3. Though the Inspector General of Police & Commissioner of Police, Thiruvananthapuram City, has filed a statement dated 11.01.2023, setting out the action taken against the perpetrators, as well as the appointment of the Nodal Officer, Mr. Ranjith Thampan, learned Senior Counsel, submitted that the District Police Chiefs are not the Nodal Officers, as envisaged in the decision of the Hon’ble Apex Court in **Kodungallur Film Society** ’s case (cited _supra_ ). According to him, nothing has been done by the State Government for complying with the directions of the Hon’ble Apex Court in Exhibit-P1 judgment. 4. Mr. N. Manoj Kumar, learned State Attorney, submitted that in respect of Vizhinjam incident, Police has acted with all responsibility; that 17 cases have been registered under the Prevention of Damage to Public Property Act, 1984, the Kerala Prevention of Damages to Private Property and Payment of Compensation Act, 2019; that the _**W.P(C).42536/2022**_ 6 matter is under investigation; that the said incident is confined to a particular place and that it cannot be treated as a mass destruction. 5. Incident is alleged to have been reported in Rural and not within city limits. Though rival contentions have been raised, in the statement filed by the Inspector General of Police & Commissioner of Police, Thiruvananthapuram City (respondent No.4), _prima facie_ , we are of the view that the said statement does not reflect the action taken by the State Government, pursuant to the directions issued in **Kodungallur Film Society** ’s case (cited _supra_ ). 6. Annexure-R4(a) Circular dated 05.09.2018 is extracted hereunder: “ **No.U6-111784/2018/PHO** Police Headquarters, Thiruvananthapuram, Dated: 05-09-2018 ## **Circular No.24/2018** - Sub:- Incidents of violence and lynching by mobs- directions issued by the Hon'ble Supreme Court to the State Government to curb the incidents of mob lynching instructions issued- reg. - Ref: 1. Judgment of the Hon'ble Supreme Court dated 1707-2018 in _Tehseen S. Poonawalla Vs. Union of India_ [WP(C) No.754 of 2016) 2. Letter No.11034/54/2018-IS.IV dated 23-07-2018 from the Ministry of Home Affairs, Government of India. 3. PHQ Circular No.22/2018 dated 07-08-2018. Hon'ble Supreme Court, in the writ petition 1" cited, had ruled that" lynching is an affront to the rule of law and to _**W.P(C).42536/2022**_ 7 the exalted values of the Constitution itself. Lynching by unruly mobs and barbaric violence arising out of incitement and instigation cannot be allowed to become the order of the day. Such vigilantism, be it for whatever purpose or borne out of whatever cause, has the effect of undermining the legal and formal institutions of the State and altering the constitutional order. In view of the direction of the Apex Court in the writ petition cited and considering the criticality and gravity all the District Police Chiefs in the State are designated as Nodal Officers in their respective districts who shall be assisted by one DySP rank officer of the district nominated by the Superintendent of Police for taking measures to prevent incidents of mob violence and till the State Government makes specific designation in this regard. They shall constitute a "special task force" so as to procure intelligence about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news. The following directions issued by the Hon'ble court in relation to action by the Police are also brought to the notice of all officers concerned for strict compliance: 1. The Nodal Officer, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents. 2. The Nodal Officers shall bring to the notice of the State Police Chief any inter-district co-ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level. 3. It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of _**W.P(C).42536/2022**_ 8 the Code of Criminal Procedure, 1973 which, in his opinion, has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise. 4. The District Police Chiefs shall direct compulsory police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence gathered at the district level and ADGP (Intelligence) will do the same for the State. It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands. 5. The police shall cause to register FIR under Section 153A of IPC and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind. ## _Remedial Measures_ 1. Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of IPC and/or other provisions of law. 2. It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s). 3. Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be. 4. The cases of lynching and mob violence shall be specifically tried by designated court Fast Track Courts _**W.P(C).42536/2022**_ 9 earmarked for that purpose in each district. Such courts shall hold trial of the case on a day to day basis. The trial shall preferably be concluded within six months from the date of taking cognizance. This direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional court so as to ensure expeditious disposal thereof. It shall be the duty of the Nodal Officers in particular to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial. 5. To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the Indian Penal Code. 6. The courts trying the cases of mob violence and lynching may, on application by a witness or by the public prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for concealing the identity and address of the witness. 7. The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall be given timely notice of any court proceedings and he/she shall be entitled to be heard at the trial in respect of applications such as bail, discharge, release and parole filed by the accused persons. They shall also have the right to file written submissions on conviction, acquittal or sentencing. 8. The victim(s) or the next of kin(s) of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987. ## _Punitive Measures_ 1. Wherever it is found that a police officer or an officer of the district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of _**W.P(C).42536/2022**_ 10 deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance. 2. In terms of the ruling of the Hon'ble Supreme Court in _**Arumugam Servai v. State of Tamil Nadu**_ [(2011) 6 SCC 405], the States have been directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits. If any laxity or negligence is noticed on the part of any officer concerned in complying with the above directions, strict disciplinary action should be initiated against such officer by the disciplinary authority concerned. Sd/Loknath Behera, IPS, Director General of Police & State Police Chief.” 7. As rightly pointed out by the learned Senior Counsel for the petitioners, even Annexure-R4(a) circular dated 05.09.2018 is anterior to the abovesaid judgment. 8. At this juncture, going through the decision in **Kodungallur Film Society** ’s case (cited supra), _prima facie_ , we are of the view that the State Government are bound to implement the directions contained in the judgment. 9. Mr. N. Manoj Kumar, learned State Attorney, seeks time to file counter affidavit on behalf of respondent No.2, as regards the implementation of the said judgment. Post after two weeks.” _**W.P(C).42536/2022**_ 11 ## 3. Directions of the Hon’ble Apex Court in **Kodungallur Film Society and Another v Union of India and Others,** reported in **[2018 (10) SCC 713]** are as under: “16. There are overlapping areas of directions which albeit apply to the situations referred to in the concerned decision. For the purpose of the present writ petition, we have no hesitation in observing that the dispensation can be similar to the one decided recently in Tehseen Poonawalla (supra), for which reason the guidelines delineated in the said decision must apply proprio vigore in respect of peaceful protests turning into mob violence, causing damage to public and private properties. A. Ex abundanti cautela, we may hasten to clarify that similar interim measures will operate in respect of any peaceful protest turning into mob violence, causing loss of life or damage to public and private properties, including violence designed to instill fear in the minds and terrorise the common man, in the absence of any law to that effect. The recommendations / directions elucidated hereunder are not exhaustive but only to set out broad contour of the measures required to be taken and are in addition to the recommendations/directions given in In Re: Destruction of Public and Private Properties (supra): ## A. Structural and preventive measures a) In addition to the responsibilities ascribed to the Nodal Officer(s) as set out in Tehseen Poonawalla (supra), the said Nodal Officer(s) would also be responsible for creating and maintaining a list containing the various cultural establishments, including theatres, cinema halls, music venues, performance halls and centres and art galleries within the district, and pin point vulnerable cultural establishments and property which have been attacked/damaged by mob violence over the past 5 (five) _**W.P(C).42536/2022**_ 12 years. This list would be updated on a regular basis to account for any new openings/closings of establishments. b) In addition to the prohibition against weaponry laid down in paragraph 12 (II) of In Re: Destruction of Public and Private Properties (supra), any person found to be carrying prohibited weaponry, licensed or otherwise, during protests/demonstrations would prima facie be presumed to have an intention to commit violence and be proceeded in that regard as per law. c) The State governments should set up Rapid Response Teams preferably district-wise which are specially trained to deal with and can be quickly mobilized to respond to acts of mob violence. These teams can also be stationed around vulnerable cultural establishments as mentioned hereinabove. d) The State governments should set up special helplines to deal with instances of mob violence. e) The State police shall create and maintain a cyberinformation portal on its website and on its internet-based application(s) for reporting instances of mob violence and destruction of public and private properties. B. Remedies to minimize, if not extirpate, the impending mob violence a) The Nodal Officer(s) will coordinate with local emergency services, including police stations, fire brigades, hospital and medical services and disaster management authorities during incidents of mob violence in order to have a comprehensive and consolidated response to the situation. b) The authorities must consider the use of non-lethal crowd-control devices, like water cannons and tear gas, which cause minimum injury to people but at the same time, act as an effective deterrent against mob force. _**W.P(C).42536/2022**_ 13 c) The authorities must ensure that arrests of miscreants found on the spot are done in the right earnest. d) The Nodal Officer(s), may consider taking appropriate steps as per law including to impose reasonable restrictions on the social media and internet-based communication services or mobile applications, by invoking enabling provisions of law during the relevant period of mob violence, if the situation so warrants. e) The Nodal Officer(s) must take coordinated efforts and issue messages across various audio-visual mediums to restore peace and to stop/control rumours. This can extend to issuing communications on local TV channels, radio stations, social media like Twitter etc. ## C. Liability of person causing violence a) If a call to violence results in damage to property, either directly or indirectly, and has been made through a spokesperson or through social media accounts of any group/organization(s) or by any individual, appropriate action should be taken against such person(s) including under Sections 153A, 295A read with 298 and 425 of the Indian Penal Code, 1860. b) In instances where a group/organisation has staged a protest or demonstration resulting in violence and damage to property, the leaders and office bearers of such group/organisation should physically present themselves for questioning, on their own, within 24 (twenty four) hours, in the police station within whose jurisdiction the violence and damage occurred. Any such person(s) failing to present himself/herself in such manner without any sufficient reason should be proceeded against as a suspect and legal process must be initiated forthwith against him/her including for being declared an absconder in accordance with law. c) A person arrested for either committing or initiating, promoting, instigating or in any way causing to occur any act _**W.P(C).42536/2022**_ 14 of violence which results in loss of life or damage to property may be granted conditional bail upon depositing the quantified loss caused due to such violence or furnishing security for such quantified loss. In case of more than one person involved in such act of violence, each one of them shall be jointly, severally and vicariously liable to pay the quantified loss. If the loss is yet to be quantified by the appropriate authority, the judge hearing the bail application may quantify the amount of tentative damages (which shall be subject to final determination thereof by the appropriate authority) on the principle stated in paragraph 15 of the decision in In Re: Destruction of Public and Private Properties (supra), after hearing the submissions of the State/agency prosecuting the matter in that regard. ## D. Responsibility of police officials a) When any act of violence results in damage to property, concerned police officials should file FIRs and complete investigation as far as possible within the statutory period and submit a report in that regard. Any failure to file FIRs and conduct investigations within the statutory period without sufficient cause should be considered as dereliction of duty on behalf of the concerned officer and can be proceeded against by way of departmental action in right earnest. b) Since the Nodal Officer(s) holds the overall responsibility in each district to prevent mob violence against cultural establishments and against property, any unexplained and/or unsubstantiated delay in filing FIRs and/or conducting investigations in that regard should also be deemed to be inaction on the part of the said Nodal Officer(s). c) With reference to the videography mentioned in paragraphs 5(iv), 10 and 12 of In Re: Destruction of Public and Private Properties (supra), the officer-in-charge should first call upon from the panel of local video operators _**W.P(C).42536/2022**_ 15 maintained by the concerned police station to video-record the events. If the said video operators are unable to record the events for whatever reason or if the officer-in-charge is of the opinion that supplementary information is required, then he/she can also call upon private video operators to record the events and request the media for information on the incident in question, if need be. d) Status reports of the investigation(s)/trial(s) concerning such offences as set out hereinabove, including the results of such trial(s), shall be uploaded on the official website of the concerned State police on a regular basis. e) In the event of acquittal of any person(s) accused of committing such offences as set out hereinabove, the Nodal Officer(s) must coordinate with the Public Prosecutor for filing appeal against such acquittal, in the right earnest. ## E. Compensation a) The person/persons who has/have initiated, promoted, instigated or any way caused to occur any act of violence against cultural programmes or which results in loss of life or damage to public or private property either directly or indirectly, shall be made liable to compensate the victims of such violence. b) Claims arising out of such acts of violence should be dealt with in the manner prescribed in paragraph 15 of In Re:Destruction of Public and Private Properties (supra). c) This compensation should be with regard to the loss of life or damage done to any public or private properties, both movable and immovable. 17. The recommendations that we have made hereinabove be implemented by the Central and State governments as expeditiously as possible, preferably within a period of 8 (eight) weeks from today. _**W.P(C).42536/2022**_ 16 4. The Commissioner of Police, Thiruvananthapuram/ respondent No.4 has filed a counter affidavit explaining the steps taken in so far as the case registered in respect of the agitation, at Vizhinjam Police Station. Relevant portions are reproduced: “4. It is respectfully submitted that the respondents have implemented various directions issued by the Hon'ble Supreme Court of India in the judgment dated 01.10.2018 in Kodungallur Film Society v. Union of India. 5. Various incidents mentioned by the petitioner in the Writ Petition relates to the agitation occurred in the jurisdictional limits of Vizhinjam Police Station in connection with the protest against the construction of Vizhinjam International Seaport by M/s. Adani Vizhinjam Port (Pvt.) Limited. 181 cases were registered in respect of the above agitation at Vizhinjam Police Station which includes 17 cases registered under PDPP Act and Kerala Prevention of Damages to Private Property and Payment of Compensation Act 2019. The details of the above cases are mentioned in the statement filed by the 4[th] respondent pursuant to the interim directions of the Hon'ble Court issued on 23.12.2022. It is respectfully submitted that the above statement may be read as part of this affidavit. However in the statement, an inadvertent error had occurred and it was stated that it is pursuant to the judgment In Kodungallur Film Society case that Annexure R4(a) Circular No. 24/2018 was issued by the State Police Chief. Infact the said Circular was issued pursuant to the directions of the Hon'ble Supreme Court in Tehseen S. Poonawalla v. Union of India. The _**W.P(C).42536/2022**_ 17 above mistake occurred due to oversight and is not wilful. This deponent expresses regret for the above mistake. 6. It is respectfully submitted that in view of the destruction and loss occurred to the KSRTC vehicles during the Sabarimala agitation, on 02.11.2018 the State Police Chief, Kerala directed all District Police Chiefs, Range IGPs and Zone ADGPs that the dictum in the judgment in the Kodungallur Film Society case issued by the Hon'ble Supreme Court of India shall be made applicable in all instances where loss of the life or damage of property is occasioned due to mob violence or protests or demonstrations in future. 7. It is submitted that, the State Police Chief, Kerala also issued specific directions to the District Police Chiefs and Range Inspectors General regarding the steps to be taken in case of damages occurred to the Government Roads, Highway etc., if such violence notice in view of judgment in Kodungallur Film Society case issued by the Hon'ble Supreme Court of India. 8. It is submitted that, in response to the guidelines contained in the judgment issued by the Hon'ble Supreme Court of India in Tehseen S. Poonawalla v. Union of India, a Circular No. 24/2018 was issued by the State Police Chief, Kerala. As per this circular, the State Police Chief designated the District Police Chiefs as Nodal Officers in their respective districts assisted by one Dy.SP. Thereafter, in view of the continuing destruction of public properties in connection with harthals, agitations, processions and as per advice of the Government of Kerala, the State Police Chief has now issued a Circular No. 5/2023/PHQ dated 18.02.2023. As per this Circular, directions have been issued to the Nodal Officers (District Police Chiefs) _**W.P(C).42536/2022**_ 18 to comply the directions contained in the Circular in view of the judgment issued by the Hon'ble Supreme Court of India in Kodungallur Film Society case. 9. It is respectfully submitted that the respondents have complied with the directions of the Hon'ble Supreme Court in Kodungallur Film Society case. In future also, the respondent will implement the directions in the said judgment.” 5. Annexure R4(a) dated 2.11.2018, is a letter addressed by State Police Chief, Thiruvananthapuram to all the District Police Chiefs/All Range IsG/ADGP NZ/ADGP SZ, and the same is reproduced: “No.U2-15932/2018-PHQ Police Headquarters, Dated: 02-11-2018 Thiruvananthapuram From State Police Chief, Kerala, Police Head Quarters, Vazhuthacaud, Thiruvananthapuram-695010. To The District Police Chiefs/All Range IsG/ADGP NZ/ADGP SZ Sub:- Destruction to public property - recovery of damages sustained to KSRTC from the accused persons in the Sabarimala issue by demanding conditional bail upon deposit of quantified loss- instructions – reg. _**W.P(C).42536/2022**_ 19 - Ref: 1.Judgment of the Hon'ble Supreme Court of India dated 01-10-2018 in the case _Kodungallur Film Society V. Union of India_ [Writ Petition (Civil) No. 330/2018] 2. Letter No LS1-29734/08/HC dated 22-10-2018 from the Chairman & Managing Director, KSRTC. The Chairman & MD, KSRTC has reported an amount equal to Rs. 1,25,35,000/- (Rupees One Crore Twenty Five Lakhs Thirty Five Thousand only) vide reference 2[nd] cited as initial assessment of loss caused to the KSRTC in the Sabarimala agitations. Hon'ble Supreme Court reiterating earlier judgments with reference to damage to public and private properties arising out of mob violence, protests and demonstrations, have held vide judgment 1[st] cited that- c) A person arrested for either committing or initiating, promoting, instigating or in any way causing to occur any act of violence which results in loss of life or damage to property may be granted conditional bail upon depositing the quantified loss caused due to such violence or furnishing security for such quantified loss. In case of more than one person involved in such act of violence, each one of them shall be jointly, severally and vicariously liable to pay the quantified loss. If the loss is yet to be quantified by the appropriate authority, the judge hearing the bail application may quantify the amount of tentative damages (which shall be subject to final determination thereof by the appropriate authority) on the principle stated in paragraph 15 of the decision in In Re: Destruction of Public and Private Properties (supra), after hearing the submissions of the State/agency prosecuting the matter in that regard. In view of the Letter 2[nd] cited quantifying loss occasioned to the KSRTC in different districts, all District Police Chiefs are instructed to take up the matter immediately with _**W.P(C).42536/2022**_ 20 the APPs concerned, for identifying the persons arrested who have either committed or initiated or promoted or instigated in the respective districts, violence occasioning damage to public and private property and for the demand of deposit of the quantified loss by the accused agitators on the basis of the details of damaged buses enclosed with the letter 2[nd] cited. Action Taken Report in this regard shall be forwarded to this office within one month positively. It is also directed that the dictum in the judgment 1[st] cited shall be made applicable in all instances where loss of life or damage to property is occasioned due to mob violence or protests or demonstrations in future. DPCs are directed to brief all the field officers. The immediate superior officers and controlling officers should ensure that all the above instructions are strictly followed. Sd/- Loknath Behera, IPS, Director General of Police & State Police Chief.” 6. Annexure R4(b) circular issued by the Director General of Police & State Police Chief to all the District Police Chiefs/Inspector General(s) of Police (Ranges), dated 22.1.2019, regarding the steps to be taken in case of damages occurred to Government Roads, Highways etc., if such violence noticed, in _**W.P(C).42536/2022**_ 21 view of the judgment in **Kodungallur Film Society** Case, issued by the Hon’ble Supreme Court of India, reads as under: ## “PERSONAL ATTENTION ## CoB ΤΟ : ALL DPCS/IGSP (Ranges) INF. : ADGsP (Zones) FROM : DGP & STATE POLICE CHIEF, KERALA --------------------------------------------------------------------------------------No. U2-15932/2019/PHQ Dated, 22 January, 2019. ---------------------------------------------------------------------------------------- Sub: Damage caused to highways and State roads etc. due to violence caused by harthals etc. - necessary actioninstruction – reg. Ref:-1. Judgment of the Hon'ble Supreme Court of India dated 01-10-2018 in the case _Kodungallur Film Society V Union of India_ [Writ Petition (Civil) No.330/2018] 2. Letter No.U2-15932/2018-PHQ dated 01-11-2018 from the State Police Chief. Attention is invited to the references cited. It has already been instructed vide Letter 2[nd] cited that the dictum in the judgment 1[st ] cited shall be made applicable in all instances where loss of life or damage to property is occasioned due to mob violence or protests or demonstrations in future. Recently, instances revealing damage to State roads, highways etc. during harthals are also seen reported. The Patna High Court vide judgment dated 21-02-2011 in the case _Vikash Kumar Singh vs The State of Bihar_ (CWJC No.17979 of 2010] had _**W.P(C).42536/2022**_ 22 already held that government roads and highways are public properties. Hence, the damage caused to National and State highways, government roads etc. shall also be regarded as damage to public property and action taken as directed by the apex court vide judgment 1[st] cited. The invoking of the provisions under the Prevention of Damage to Public Property Act, 1984 along with IPC provisions may also be considered while registering such cases. In view of the above legal position, it is instructed that if damage to government roads, highways etc. due to violence are noticed, the following steps shall be followed: 1. When any act of violence results in damage to property (read roads), concerned police officials should file FIRs and complete investigation as far as possible within the statutory period. The persons responsible for such violence should be identified. 2. The quantified loss furnished by the Engineers concerned or other officers responsible shall be submitted to the APP/PP concerned without delay, that is, sufficiently before the initiation of court proceedings in the bail applications of the persons arrested who are responsible for such violence. 3. The matter shall be followed up with the APP/PP concerned, for the demand of deposit of the quantified loss by the accused agitators on the basis of the details of damage furnished by the Engineers/other officers concerned. DPCs are directed to brief all the field officers. The immediate superior officers and controlling officers should ensure that all the above instructions are strictly followed. Sd/- _**W.P(C).42536/2022**_ 23 LOKNATH BEHERA, IPS, Director General of Police & State Police Chief.” 7. A consolidated circular dated 18.2.2023, is issued by the State Police Chief, in terms of the judgment of Hon’ble Supreme Court stated supra, which reads thus: ## **“ No.U6-143831/2022/PHQ** Police Headquarters, Thiruvananthapuram phq pol@kerala.gov.in 04712721547 Dated. 18-02-2023 ## **Circular. 5/2023/PHQ** Sub: Destruction and Damage to Public Properties in the name of agitations, bandhs, hartals etc -directions issued by the Hon'ble Supreme Court to be strictly complied withinstructions issued – reg. Ref: 1. Judgment of the Hon'ble Supreme Court dated 16-042009 in WP(Crl)No.77/2007 [In Re: Destruction of Public & Private Properties V. State of AP] 2. Judgment of the Hon'ble Supreme Court dated 10-012018 in WP(C) No.330/2018 filed by Kodungallur Film Society Vs Union of India and others. 3. Judgment of the Hon'ble Supreme Court dated 17-072018 in Tehseen S. Poonawalla Vs. Union of India (WP(C) No.754 of 2016]. _**W.P(C).42536/2022**_ 24 4 Letter No. U2-15932/2018-PHQ dated 02-11-2018 issued by the State Police Chief. 5. CoB Message No. U2-15932/2019/PHQ dated 22-01-2019 issued by the State Police Chief 6. PHQ Circular No 22/2018 dated 07-08-2018 and Erratum dated: 17-05-2019 issued by the State Police Chief. 7. PHQ Circular No 24/2018 dated 05-09-2018 issued by the State Police Chief. 8. Letter No.M2/433/2022/Home dated 14/02/2023. 01. As per section 3 of the Prevention of Damage to Public Property Act, 1984 (PDPP Act) anyone who commits mischief by doing any act in respect of any public property shall be punished with imprisonment for a term which may extend up to five years and fine or both. Whenever incidents of large scale damage to public property are reported at public meetings, demonstrations, agitations, processions etc., section 3 of the PDPP Act shall be invoked by the Police along with the other relevant provisions under Indian Penal Code, 1860, as may be applicable in each case. 02. Hon'ble Supreme Court of India had laid down the guidelines with regard to the measures to be taken to prevent destruction of public and private properties in mass protests and demonstrations, and also regarding the modalities of fixing liability and recovering compensation for damages caused to public and private properties during such demonstrations and protests, vide judgment 1[st] cited. With regard to the preventive action of Police, to effectuate the modalities for such preventive action and adding teeth to _**W.P(C).42536/2022**_ 25 enquiry/investigation, the Hon'ble Court In Re. Destruction of Public & Private Properties Case, has laid down the following guidelines. As soon as there is demonstration organized: (I) The organizer shall meet the Police to review and revise the route to be taken and to lay down conditions for a peaceful march or protest; (II) All weapons, including knives, lathis and the like shall be prohibited; (III) An undertaking is to be provided by the organizers to ensure a peaceful march with marshals at each relevant junction; (IV) The Police and the State Government shall ensure videograph of such protests to the maximum extent possible: (V) The person in charge to supervise the demonstration shall be the SP (if the situation is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district. (VI) In the event that demonstrations turning violent, the officer-in-charge shall ensure that the events are videographed through private operators and also request for such further information from the media and others on the incidents in question. (VII) The Police shall immediately inform the State Government with reports on the events, including damage, if any, caused. The Hon'ble Apex Court, taking a serious note of various instances where there was large scale destructions of Public and Private properties in the name of agitation had directed _**W.P(C).42536/2022**_ 26 structural and preventive measures and remedies to minimise the destruction of Public and Private properties, vide Judgment 2[nd] cited [Kodungallur Film Society Vs Union of India]. In this judgment, Hon'ble Supreme Court ordered that _"a person arrested for either committing or initiating, promoting, instigating or in any way causing to occur any act of violence which results in loss of life or damage to property may be granted_ _**conditional bail upon depositing the quantified loss** caused due to such violence or furnishing security for such quantified loss."_ In compliance to the dictum in the Kodungallur Case, the State Police Chief had already given instructions to all the DPCs for strict implementation of the directions therein the Judgment, vide references cited 4[th] and 5[th] above. However, in view of the continuing destruction of public properties in harthals, agitations, processions etc., it has become necessary to remind once again the importance of complying with the directions of the Hon'ble Apex Court in the Kodungallur Case as an effective preventive measure of the Police. Hence, the following directions are issued to all the District Police Chiefs/Nodal Officers for strict compliance of the same as per the reference cited 8: 1. The Nodal Officer(s) as set out in Tehseen Poonawalla (supra) would also be responsible for creating and maintaining a list containing the vanous cultural establishments, including theatres, cinema halls, music venues, performance halls and centres and art galleries within the district, and pin point vulnerable cultural establishments and property which have been attacked/damaged by mob violence over the past five _**W.P(C).42536/2022**_ 27 years. This list would be updated on a regular basis to account for any new openings/closings of establishments. 2. Any person found to be carrying prohibited weaponry, licensed or otherwise, during protests/demonstrations would _prima facie_ be presumed to have an intention to commit violence and be proceeded against in that regard as per law. 3. ADGP Cyber Operations should takes steps to re-design the cyber information portal so as to include on its internet-based application(s) provision for reporting instances of mob violence and destruction of public and private properties. 4. The Nodal Officer(s) will coordinate with local emergency services, including Police Stations, fire brigades, hospital and medical services and disaster management authorities during incidents of mob violence in order to have a comprehensive and consolidated response to the situation. 5. The non-lethal crowd-control devices, like water cannons and tear gas, which cause minimum injury to people but at the same time, act as an effective deterrent against mob force should be used. 6. The miscreants found on the spot should be arrested in the right earnest. 7. Reasonable restrictions on the social media and internetbased communication services or mobile applications may be imposed by the Nodal Officers, as per law, during the relevant period of mob violence, if the situation so warrants. 8. Coordinated efforts shall be made by the Nodal Officers by issuing messages across various audio-visual medias to restore peace and to stop/control rumours. This can extend to issuing _**W.P(C).42536/2022**_ 28 communications on local TV channels, radio stations, social media like Twitter, etc. 9. If a call to violence results in damage to property, either directly or indirectly, and has been made through a spokesperson or through social media accounts of any group/organization(s) or by any individual, appropriate action should be taken against such person(s) including under Sections 153A, 295A read with 298 and 425 of the Indian Penal Code, 1860. 10. In instances where a group/organisation has staged a protest or demonstration resulting in violence and damage to property, the leaders and office bearers of such group/organisation should be physically present themselves for questioning or on their own within 24 (twenty four) hours, in the police station within whose jurisdiction the violence and damage has occurred. Any such person(s) failing to present himself/herself in such manner without any sufficient reason should be proceeded against as a suspect and legal process must be initiated forthwith against him/her including for being declared an absconder in accordance with law. 11. A person arrested for either committing or initiating, promoting, instigating or in any way causing to occur any act of violence which results in loss of life or damage to property may be granted conditional bail upon depositing the quantified loss caused due to such violence or furnishing security for such quantified loss. In case of more than one person involved in such act of violence, each one of them shall be jointl,y severally and vicariously liable to pay the quantified loss. If the loss is yet to be quantified by the appropriate authority, the Judge _**W.P(C).42536/2022**_ 29 hearing the bail application may quantify the amount of tentative damages (which shall be subject to final determination thereof by the appropriate authority) on the principle stated in paragraph 15 of the decision in In Re: Destruction of Public and Private Properties Case (supra), after hearing the submissions of the State/agency prosecuting the matter in that regard. 12. When any act of violence results in damage to property, concerned police officials should file, FIRs and complete investigation as far as possible within the statutory period and submit a report in that regard. Any failure to file FIRs and conduct investigation within the statutory period without sufficient cause should be considered as dereliction of duty of the concerned officer and is to be proceeded against by way of departmental action at the right earnest. 13. The Nodal Officer(s) holds the overall responsibility in each district to prevent mob violence against cultural establishments and against property. Hence, any unexplained and/or unsubstantiated delay in filing FIRs and/or conducting investigations in that regard will be deemed to be inaction on the part of the said Nodal Officer(s). 14. The officer-in-charge should first call upon from the panel of local video operators maintained by the concerned police station to video-record the events. If the said video operators are unable to record the events for whatever reason or if the officer-in-charge is of the opinion that supplementary information is required, then he/she can also call upon private video operators to record the events and request the media for information on the incident in question, if need be. _**W.P(C).42536/2022**_ 30 15. Status reports of the investigation(s) / trial(s) concerning such offences as set out herein above, including the results of such trial(s), shall be uploaded on the official website of State Police by IGP SCRB on a regular basis. 16. In the event of acquittal of any person(s) accused of committing offences of the nature aforesaid, the Nodal Officer(s) must coordinate with the Public Prosecutor for filing appeal against such acquittal, within the limitation period. The above directions are to be read along with the directions of the Hon'ble Apex Court in Kodungallur Film Society Case. In Re. Destruction of Public & Private Properties Case. Tehseen S. Poonawalla Case. PHQ Circulars No 22/2018, its erratum and 24/2018. All officers are hereby directed to comply with the above directions. **==> picture [143 x 38] intentionally omitted <==** 8. Thus, giving due consideration to the material on record, we are of the view that the prayers sought for in this writ petition have been substantially complied with by the respondents. 9. However, having regard to the incidents, the damage to the public property, rights of the citizens of the State, and the loss caused to the public exchequer, it is imperative that Circular _**W.P(C).42536/2022**_ 31 No.5/2023/PHQ dated 18.2.2023, issued by the State Police Chief, should be made known to the public. 10. Posed with the question as to whether the State Government would publish the circular in the newspapers, Mr. K. R. Renjith, learned Government Pleader, candidly and affirmatively submitted that circular will be published. In this context, he has also invited the attention of this Court to paragraph No.8 of the circular dated 18.2.2023 (Exhibit R4(c)), which reads thus: “8. Coordinated efforts shall be made by the Nodal Officers by issuing messages across various audio-visual medias to restore peace and to stop/control rumours. This can extend to issuing communications on local TV channels, radio stations, social media like Twitter, etc.” It is our view that the above reference is, with reference to coordination of officers, and it is not in relation to the publication of the circular. 11. Placing on record the submission of Mr. K.R. Renjith, learned Government Pleader, we direct the Secretary to the Government, Department of Home, Government Secretariat, Thiruvananthapuram; and the State Police Chief, _**W.P(C).42536/2022**_ 32 Thiruvananthapuram/respondents 2 and 3, to cause publication of the circular, within three weeks from the date of receipt of a copy of this judgment. 12. Respondents 2 to 5 are also directed to comply with the directions of Hon’ble Supreme Court in **Kodungallur Film Society and Another v. Union of India and Others,** reported in **[2018 (10) SCC 713],** in letter and spirit, without giving room for any further litigation on the issues raised in this writ petition. With the above said directions, writ petition is disposed of. Post on 13.4.2023 for compliance report. Sd/S. Manikumar, Chief Justice Sd/Murali Purushothaman, Judge sou.xxx _**W.P(C).42536/2022**_ 33 ## **`APPENDIX OF WP(C) 42536/2022`** ## `PETITIONER EXHIBITS` - `EXHIBIT P1 TRUE COPY OF THE DECISION REPORTED IN 2018 (10) SCC 713 (KODUNGALLUR FILM SOCIETY AND ANOTHER V. UNION OF INDIA AND OTHERS)` - `EXHIBIT P2 TRUE COPY OF THE DECISION REPORTED IN 2009 (5) SCC 212 (IN RE: DESTRUCTION OF PUBLIC & PVT. PROP. V. STATE OF A.P. AND ORS)` - `EXHIBIT P3 PHOTOGRAPHS SHOWING THE VIOLENT MEASURES UNDERTAKEN DURING THE PROTESTS.` ## `RESPONDENT ANNEXURES` - `ANNEXURE R4(A) TRUE COPY OF THE CIRCULAR NO.24/2018 ISSUED BY THE STATE POLICE CHIEF, KERALA` - `EXHIBIT R4(a) TRUE COPY OF THE LETTER NO.U2-15932/2018PHQ DATED 02.11.2018.` ``` EXHIBIT R4(b)TRUE COPY OF THE LETTER NO.U2-15932/2019- PHQ DATED 22.01.2019. ``` ``` EXHIBIT R4(c)TRUE COPY OF THE CIRCULAR NO.5/2023/PHQ DATED 18.02.2023. ```