THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.25183 of 2011   Ganesan                                                                    …Petitioner                                                           Vs. 1.The State of Tamil Nadu,    Rep.by the Secretary to Government,    Home Department, Secretariat,    Chennai – 600 009.For Petitioner               : Mr. M. Radhakrishnan                                                     For Mr.P. Pugalendhi                 For R1 to R5           : Mr.P.Kumaresan                                                     Additional Advocate General                                                     Assisted by                                                     Mr.S.Ravichandran                                                     Additional Government Pleader .

IN THE HIGH COURT OF JUDICATURE AT MADRAS

                          RESERVED ON              : 26.04.2023

                    PRONOUNCED ON    : 26.05.2023

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

W.P.No.25183 of 2011

 

  1. Ganesan                                                                    …Petitioner

 

Vs.

 

1.The State of Tamil Nadu,

Rep.by the Secretary to Government,

Home Department, Secretariat,

Chennai – 600 009.

 

2.The Director General of Police,

Mylapore,  Chennai – 600 004.

 

3.The Commissioner of Police,

Egmore, Chennai – 600 008.

 

4.Mr. Manivanan

Inspector of Police,

Q-Branch CID, Chennai – 5.

 

5.Mr.S.A.Srinivasan,

Inspector of Police,

Shankar Nagar Police Station,

Chennai.                                                                                ..Respondents

 

Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents 1 to 3 to initiate appropriate disciplinary proceedings against respondents 4 and 5 for illegally arresting and detaining the petitioner for five days from 09.08.2011 and 14.08.2011, and further directing respondent 1-State of Tamil Nadu to award appropriate compensation to the petitioner for his said illegal arrest and detention, and further directing respondent 1-State of Tamil Nadu to transfer the investigation of Crime No.741 of 2011 pending with Q Branch CID, Chennai to the Central Bureau of Investigation.

 

For Petitioner               : Mr. M. Radhakrishnan

For Mr.P. Pugalendhi

 

For R1 to R5           : Mr.P.Kumaresan

Additional Advocate General

Assisted by

Mr.S.Ravichandran

Additional Government Pleader

ORDER

The relief sought for in the present writ petition is for a direction to direct the respondents 1 to 3 to initiate appropriate disciplinary proceedings against respondents 4 and 5 for illegally arresting and detaining the petitioner for five days from 09.08.2011 and 14.08.2011, and further to direct the 1st respondent State of Tamil Nadu to award appropriate compensation to the petitioner for his said illegal arrest and detention, and to direct respondent 1-State of Tamil Nadu to transfer the investigation of Crime No.741 of 2011 pending with Q Branch CID, Chennai to the Central Bureau of Investigation.

 

  1. The petitioner states that he was in firewood shop on 09.08.2011. At about 3:30 p.m, Shankar Nagar Police and Q-Branch Police came to his shop and took him first to his house and took away a torch-light from his house and thereafter they had taken the petitioner to the Police Station. In the Police Station, the petitioner found that his friend Jesu Raja was also arrested and detained. The petitioner was taken by the Police blind-fold to various police stations and ultimately, shifted to a bungalow in Neelankarai, Chennai District. The petitioner was beaten by the police time and again and was tortured to give a statement to the effect that he is responsible for the blast at the Villupuram Railway track that occurred long ago. The daughter of the petitioner sent telegrams about the petitioner’s absence to various authorities on 13.08.2011.

 

  1. The telegrams were received by the competent authorities. However, no action was taken and again, the petitioner was assaulted by the police and he was pressurized to give statement as directed by the Police.

 

  1. The learned counsel for the petitioner mainly contended that the law laid down by the Hon’ble Supreme Court of India in the case of D.K.Basu Vs. State of West Bengal, reported in (1997) 1 SCC 416 has been glaringly violated by the respondents/Police. The Police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel, who handled interrogation of the arrestee must be recorded in a register. As per the said judgment of the Hon’ble Supreme Court of India, the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at that time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of locality from where the arrest is made. The Hon’ble Supreme Court of India further states that the said memo of arrest shall also be countersigned by the arrestee and shall contain the time and date of arrest. No signature was ever obtained by the police personnel from the petitioner at the time of arrest of the petitioner on 09.08.2011. Since the said ruling of the Hon’ble Supreme Court of India has been totally violated by the police personnel, who effected the arrest of the petitioner, the arrest of the petitioner is illegal and consequently the detention of the petitioner is violative of Articles 14 and 21 of Constitution of India.

 

  1. The learned Additional Advocate General appearing on behalf of the respondents strenuously objected the said contentions by stating that the respondents/Police followed the procedures. The petitioner / Mr.C.Ganesan has stated that even though he was arrested on 09.08.2011 at about 3:30 p.m., he was produced before the Court on 14.08.2011 and goes on to state that when he was in his shop on 09.08.2011 at about 3:30 p.m, Shankar Nagar Police and ‘Q’ Branch Police came to his shop and took him away. The petitioner has not submitted any evidence to prove his claim. Contrary to his claim, the petitioner along with his co-accused Jesu Raja were arrested on 14.08.2011 at 09:00 a.m and produced before the learned Judicial Magistrate, Tambaram on the same day. While producing the accused before the learned Judicial Magistrate, Tambaram, both the accused did not level any such allegation of illegal custody. In the Remand order issued by the learned Judicial Magistrate, Tambaram, he has recorded as “no complaint against police”. So, the petitioner’s claim of his illegal detention in custody for five days and that coercive actions were taken against the petitioner are found to be far from the truth.

 

  1. The learned Additional Advocate General appearing on behalf of the respondents 1 to 5 further contended that the petitioner has filed a petition in Crl.O.P.No.25645/2018, in which, he himself has stated that he was arrested on 14.08.2011 at about 07.45 hours at his house by ‘Q’ Branch Police with his friend Jesu Raja, which is contra to his earlier claim that he was arrested on 09.08.2011 at 3:30 p.m in W.P.No.25183 of 2011. Thus, the writ petitioner has narrated two different facts at two different occasions, from which, it is clear that he has bringing up false allegations against police.

 

  1. Pertinently, the Criminal Case has been transferred to ‘Q’ Branch CID, as per the orders of the then Commissioner of Police, Sub Urban, Chennai and ended in conviction in the Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai, Poonamallee, Chennai in S.C.N:1/2019 on 17.10.2022. The 5th respondent has arrested the petitioner by following all the procedures laid down by the Hon’ble Supreme Court of India. Thus, the writ petition is to be rejected.

 

  1. The learned Additional Advocate General appearing on behalf of the respondents 1 to 5 relied on the judgment of the Hon’ble Supreme Court of India in the case of Bombay Metropolitan Region Development Authority, Bombay Vs. Gokak Patel Volkart Limited and others, reported in (1995) 1 SCC 642, wherein the Apex Court made the following observations:

“12. The contention of the appellant in this appeal is that in the first place the writ petition should not have been entertained. The writ petitioner had an adequate alternative statutory remedy. The writ petitioner had in fact already taken advantage of alternative remedy provided by the statute and had preferred an appeal against the judgment of the Tribunal. While the said appeal was pending the writ petitioner invoked the writ jurisdiction of the Bombay High Court praying more or less the same remedy as was prayed in the appeal.

  1. We are of the view that the point taken by the appellant is of substance. This is a case, where there is not only the existence of an alternative remedy but the writ petitioner actually had availed of that remedy. The writ petitioner’s appeal before the statutory authority was pending. In that view of the matter this writ petition should not have been entertained.”

 

  1. It is brought to the notice of this Court that against the order of conviction by the trial Court, an appeal has been preferred, which is pending before the High Court. That apart, while recording the statement before the trial Court, no such allegation was raised either by the petitioner or by any witness. In the absence of any such proof, the petitioner’s contention that he was wrongfully detained in Police custody beyond the permissible time cannot be considered for granting of the relief as such sought for in the present writ petition. The petitioner has not submitted any proof to establish that he was arrested on 09.08.2011. He made two different stands with reference to the time of arrest on 09.08.2011 and therefore, this Court, in a writ proceedings, cannot form an opinion that the petitioner was illegally kept in the police custody for about 5 days.

 

 

 

  1. Disputed facts cannot be adjudicated in a writ proceedings. All such disputed facts are to be adjudicated with reference to the documents and evidences available on record. The Criminal Case ended with an order of conviction. There is no finding by the Criminal Court of law that the petitioner was illegally kept in Police custody for 5 days. Therefore, writ Court cannot form an opinion that the petitioner has been kept in illegal custody for five days for the purpose of granting the relief. Such inconsistent findings, if given, would lead to serious consequences. Only in the event of establishing the violations without any pale of doubt, writ Court would be in a position to consider the relief.

 

  1. That apart, the Criminal Appeal is also pending. If at all any such discrepancy is made available, then the petitioner can raise the ground in the Criminal Appeal, which is pending before the High Court. Contrarily, writ Court cannot grant the relief, when there is no material available on record to establish that the petitioner was kept in illegal custody for about 5 days.

 

 

 

  1. In view of the facts and circumstances, this Court has no hesitation in forming an opinion that the petitioner has not established any acceptable ground for the purpose of considering the relief as such sought for in the present writ petition.

 

  1. Accordingly, the writ petition stands dismissed. No costs.

 

                                                                                26.05.2023

 

Index  : Yes

Speaking order

Neutral Citation:Yes

kak

 

To

 

1.The Secretary to Government,

State of Tamil Nadu,

Home Department, Secretariat,

Chennai – 600 009.

 

2.The Director General of Police,

Mylapore,

Chennai – 600 004.

 

3.The Commissioner of Police,

Egmore, Chennai – 600 008.

 

 

S.M.SUBRAMANIAM, J.

 

kak

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

W.P.No.25183 of 2011

 

 

 

 

 

 

 

 

 

 

 

 

26.05.2023

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