SEKAR REPORTER

Court News from Madras High Court

THE HONOURABLE MR. JUSTICE S.S.SUNDAR andTHE HONOURABLE MR. JUSTICE N.SENTHILKUMARW.P.Nos.3896 & 3837 of 2022 andWMP.Nos. 4035, 4036, 3972 & 3973 of 2022–A. Kalviyarasan … Petition’s in 3896/2022D. Padmavathi … Petitioner in 3837/2022Versus

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For Petitioners : Mr.M.Ravi
For RR 1 to 3 : Mr.P. Kumaresan
Additional Advocate General
Assisted by Mrs.S. Anitha,
Special Government Pleader —-
COMMON ORDER
[Order of the Court was made by N.SENTHILKUMAR, J]
These Writ Petitions have been filed seeking to set aside the order passed by the first respondent dated 30.09.2021 in SHRC Case No. 7455 of 2018.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE S.S.SUNDAR and
THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR
W.P.Nos.3896 & 3837 of 2022 and
WMP.Nos. 4035, 4036, 3972 & 3973 of 2022
–
A. Kalviyarasan … Petitioner in 3896/2022
D. Padmavathi … Petitioner in 3837/2022
Versus

  1. The State Human Rights Commission,Tamil Nadu,
    Represented by its Registrar (Law) No. 143, P.S. Kumarasamy Raja Salai Greenways Road, Chennai – 600 028.
  2. The Government of Tamil Nadu
    Represented by the Principal Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Chennai – 600 009.
  3. The Director General of Police and Head of Police Force Tamil Nadu, Chennai- 600 004.
  4. D.Chitra … Respondents in both Wps Writ Petitions are filed under Article 226 of the Constitution of India, prays for issuance of Writ of Certiorari calling for the records on the file of the First Respondent herein pertaining to the order dated 30.09.2021 in SHRC Case No. 7455 of 2018 and quash the same.
    For Petitioners : Mr.M.Ravi
    For RR 1 to 3 : Mr.P. Kumaresan
    Additional Advocate General
    Assisted by Mrs.S. Anitha,
    Special Government Pleader —-
    COMMON ORDER
    [Order of the Court was made by N.SENTHILKUMAR, J]
    These Writ Petitions have been filed seeking to set aside the order passed by the first respondent dated 30.09.2021 in SHRC Case No. 7455 of 2018.
  5. Challenging the order passed by the first respondent on the complaint given by the complainant/4th respondent herein, the respondents 1 & 2 in SHRC No.7455 of 2018 are before this Court. It is stated that the petitioner in W.P.No. 3837 of 2022 was working as Inspector of Police, Crime Branch-Criminal Investigation Department (CBCID), Egmore, Chennai and the petitioner in W.P.No. 3896 of 2022 was working as Sub Inspector of Police, B5, MKB Nagar, Vyasarpadi, Chennai.
  6. Both the writ petitioners are challenging the order passed by the State Human Rights Commission/SHRC in Case No.7455 of 2018, dated 30.09.2021.
  7. According to the 4th respondent, who is the complainant before the 1st respondent, she is living at Door No. 15/33, Krishnamurthy Road, Errukkancheri, Chennai for the past ten years and her husband died due to the torture of “Kanthu Vatti” by committing suicide on 04.02.2018.
  8. The complainant/4th respondent had a property measuring an extent of 1800 sqft., with 8 portions purchased by her husband vide Registered Sale Deed on 05.07.2007. After the demise of her husband, she and her minor son are in possession and enjoyment of the said property. One Jayanthi, her husband viz., Umasankar along with Selvaraj accompanied by some anti-social elements came to the house of the complainant on 21.02.2018 and threatened the complainant, her family members and their tenants who were in legitimate occupation in the aforesaid property, and they forced and compelled to vacate the said premises by stating that, the alleged property was purchased by the said Jayanthi from the deceased husband of the complainant/4th respondent.
  9. According to the complainant/4th respondent herein, her husband has committed suicide only because of the torture given by the said Jayanthi along with her husband and other anti-social elements. As the complainant/4th respondent was mourning, she did not prefer any complaint immediately. However, she preferred a complaint before the Commissioner of Police, Chennai, on 15.03.2018 and the same was forwarded to the Inspector of Police, Kodungaiyur Police Station, for investigation. The said complaint was treated as CSR No.294 of 2018.
  10. On 28.02.2018, the Inspector of Police (Crime), Kodungaiyur had received a complaint from the said Jayanthi, wherein the complainant/4th respondent and her minor son, named, Bharathkumar and two others were allegedly arrayed as accused persons.
  11. On 01.08.2018, at about 6.00 a.m., when the complainant/4th respondent and the family members were sleeping, the Police Officials came to her house and picked up the complainant and her minor son to the Police Station for enquiry.
  12. The complainant/4th respondent and her minor son were not allowed to attend nature’s call and they were assaulted by the petitioners herein. The complainant/4th respondent had informed the petitioners, that her minor son, namely, Bharathkumar was studying final year in Diploma in Mechanical Engineering and when he requested to attend the college, the petitioners did not allow him to go out of the Police Station.
  13. During the enquiry, the Inspector of Police, the petitioner in W.P.No.3837 of 2022 had threatened the complainant to vacate the house and to hand over the vacant possession to the said Jayanthi. The complainant/4th respondent refused to obey the threat wielded by the Inspector of Police. The threat continued and at one point of time, the complainant/4th respondent was forced to sign in blank papers and thereafter at about 10.00 p.m. the complainant/4th respondent and her son Bharathkumar were produced before the Vth Metropolitan Magistrate
    Court at Egmore for remand.
  14. The Vth Metropolitan Magistrate, Egmore refused to remand thecomplainant/4th respondent and her son and thereafter at about 11.00 p.m., the respondents had taken the complainant/4th respondent and her son to the Metropolitan Magistrate Court which was dealing with the land grabbing cases at Saidapet Court, Chennai. The learned Metropolitan Magistrate who was dealing with the land grabbing matters, after perusing the remand report and other documents, refused to remand the
    complainant/4th respondent and her son and directed the petitioners to let them free.
  15. The petitioners dropped the complainant/4th respondent and her son and they threatened them. The complainant/4th respondent had filed a suit in O.S.No.2361/2018 for a declaration and a permanent injunction in I.A.Nos.6252/2018 and 6253/2018 before the XI Assistant City Civil Court, Chennai, for the dispute between the complainant/4th respondent and the said Jayanthi and others.
  16. The FIR was registered based on the complaint given by one Jayanthi. The said FIR was registered based on the direction petition filed by the said Jayanthi before this Court in Crl.O.P.No.7976 of 2018 under Section 482 CrPC., in which, prayer was sought to direct the Inspector of Police, MKB Nagar, to register her complaint dated 15.03.2018. The order passed by this Court in Crl.O.P.No.7976 of 2018 is extracted hereunder:-
    “In the result, the petitioner, namely, Jayanthi, is directed to give a copy of the complaint dated 28.02.2018 to the Station House Officer having territorial jurisdiction over the issue. On receipt of the said copy of the complaint, the concerned Station House Officer shall adhere to the following directions.
    (1) If the information received by the fourth respondent discloses commission of a cognizable offences then, the same shall be forthwith registered.
    (2) If an information received does not disclose a cognizable offence, the fourth respondent shall conduct a preliminary inquiry to ascertain whether cognizable offence is disclosed therein or not and such inquiry shall be completed within a period of fifteen days from the date of information.
    (3) If the inquiry discloses the Commission of a cognizable offences, the FIR must be registered, if not already registered or closed.
    (4) If the preliminary inquiry ends in closing the complaint, the closure report must be recorded along with the reasonings and a copy of the same shall be furnished to the complainant within one week.
    (5) All information relating to cognizable offences whether resulting in registration of FIR or leading an inquiry must be reflected in the general diary/station diary/daily diary of the fourth respondent’s police station.
  17. Per contra, the case of the petitioners is that the complainant/4th respondent and her son were secured for the purpose of
    enquiry/investigation by following the guidelines of the Hon’ble Supreme Court and as contemplated under the Criminal Procedure Code. The writ petitioner in W.P.No.3837 of 2022 (Inspector of Police, Crime) Kodungaiyur Police Station stated that the case was registered by the SSI attached to Kodungaiyur Police Station in Crime No.289 of 2018 for offences under Sections 454, 506(i), 385 and 420 IPC on 02.08.2018.
  18. According to the petitioners, in the course of investigation, the complainant/4th respondent had admitted the offences and gave confession statement on the above aspects. Thereafter, the complainant/4th respondent and her son were produced before the learned Vth Metropolitan Magistrate at Egmore, who refused to remand the complainant/4th respondent and her son. Subsequently, the complainant/4th respondent and her son were produced before Saidapet Special Court dealing with Land Grabbing, the Special Court also refused to remand the complainant/4th respondent and her son. Therefore, the complainant/4th respondent and her son were let out on station bail.
  19. According to the writ petitioners, they have not violated any law
    or committed any violation of Human Rights as alleged by the
    complainant/4th respondent herein.
  20. The complainant/4th respondent had denied the above allegations levelled against her by the petitioners herein.
  21. Learned counsel for the first respondent submitted that based on the complaint given by the complainant/4th respondent, the Commission has taken cognisance in SHRC Case No.7455 of 2018 and issued summons to the writ petitioners, adduced evidence has given its finding. The first respondent after considering the case of the complainant/4th respondent and the counter filed by the petitioners herein, had framed the following points for consideration:-
    (i) Whether the respondents had violated the Human Rights of the complainant?
    (ii) To what other relief the Complainant is entitled to?
    The Human Rights Commission/1st respondent concluded and made its recommendation for compensation for a sum of Rs.5,00,000/- to the complainant/4th respondent herein, payable by the Government and the same could be recovered from the writ petitioners herein, a sum of Rs.2,50,000/- each and further recommended to initiate disciplinary action as against the writ petitioners herein.
  22. Heard the learned counsel for the petitioners and the learned counsels for the respondents and perused the materials available on record.
  23. On 28.02.2018, the said Jayanthi filed a complaint against the 4th respondent and the same was treated as C.S.R.No.294 of 2018. The said C.S.R. was kept alive for 15 days giving ample time to the said Jayanthi to approach the Court in Crl.OP.No.7976 of 2018 for a direction to register FIR based on her complaint and the Court passed a generic order. As per the said order, FIR must be registered only if the inquiry discloses the commission of cognisance offence. A bare reading of the complaint clearly shows that the case is civil in nature. However, the petitioners filed FIR No.789 of 2018 based on the said complaint. Further, the complainant/4th respondent has also filed a suit in O.S.No. 2316 of 2018 on the file of XIth Assistant City Civil Court, Chennai for a declaration and a permanent injunction along with I.A.Nos. 6252 and 6253 of 2018.
    In the case of Paramjeet Batra vs. State of Uttarakhand reported in
    (2013) 11 SCC 673, the Hon’ble Supreme Court has observed as follows:
    12… “whether ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.”
    In the case of Sachin Garg vs. State of U.P and Another reported in 2024 SCC Online SC 82, the Hon’ble Supreme Court has quashed the criminal complaint has made the following observation:
    “…a commercial dispute, which ought to have been resolved through the forum of civil court has been given criminal colour by lifting from the penal code certain words or phrases and implanting them in a criminal complaint.”
    In the case of Mithesh Kumar J.Sha vs. State of Karnataka and Others reported in (2022) 14 SCC 572, the Hon’ble Supreme Court has observed as follows:
    44… “this Court at innumerable instances expressed its disapproval for imparting criminal colour to a civil dispute, made merely to take advantage of relatively quick relief granted in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an abuse of the process of law which must be discouraged in its entirety.”
    Therefore, registration of FIR by the writ petitioners based on a complaint which is civil in nature is unwarranted.
  24. On the strength of the FIR, the petitioners barged into the house of the complainant/4th respondent at 6.00 a.m. and took them to the police station in the guise of enquiry and did not allow them to attend nature’s calls which is a human rights violation. This Court condemns the said act of the petitioners at the highest decree. The petitioners have taken the defence that the SSI, Kodungaiyur Police Station had registered the FIR without the knowledge of the petitioners. Such a defence cannot be countenanced, for the reason that on receipt of a complaint, even a C.S.R. will not be issued without the knowledge of the Inspector of Police Station. The above defence taken by the petitioners cannot be countenanced.
  25. That apart, the petitioners alleged that the registration of FIR and enquiry was done only at the instance of Mr.Alagesan, Assistant Commission of Police. This defence has no substance and there is no iota of material to show that the registration of FIR was made at the instance of the Assistant Commissioner, namely, Mr.Alagesan more specifically there is no mention by the complainant/4th respondent. Such a defence by the petitioners cannot be taken into consideration. The petitioners attitude to implicate the Assistant Commissioner of Police is a serious allegation and it amounts to lowering the dignity of the Police Force. The writ petitioners did not chose to examine the Assistant Commissioner of Police to prove their allegation is yet another factor to disbelieve their defence taken in the Writ Petition.
  26. When the learned Metropolitan Magistrate, Egmore refused to remand the complainant/4th respondent and her son, the petitioners did not stop there and proceeded further to produce them before the Magistrate, Saidapet dealing with Land grabbing cases, who has also refused to remand them citing the reason that the case is civil in nature. The refusal of two Metropolitan Magistrates to remand the complainant/4th respondent shows that it is only a Police excess. The Hon’ble Supreme Court in catena of cases has held that, the remand and arrest should take place only when the offences punishable are more than seven years. In the case of Jeetendra vs. State of Madhya Pradesh & another reported in (2020) 12
    SCC 536, the Hon’ble Supreme Court has observed as follows:
    6… “the High Court ought to have kept in view that ‘Bail is rule and jail is exception.’ There is no gainsaying that bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person.”
  27. The sequence of events, nature of complaint and the actions taken by the petitioners to try and remand the complainant/4th respondent and her son when there is no material for remand clearly demonstrates the cruelty and serious human rights violations committed by the petitioners.
  28. We are surprised to note that, though the recommendation was made on 30.09.2021, no disciplinary action has been initiated and in the absence of any interim order passed by this Court, we are unable to accept the inordinate delay on the part of the respondents 2 & 3 in initiating the disciplinary proceedings as against the petitioners.
  29. The first respondent, after careful examination of the evidence produced and the cross examination of the witnesses, had made the following recommendations :-
    (i) The Government of Tamil Nadu shall pay a compensation of Rs.5,00,000/- [Rupees Five Lakhs Only] to the complainant Tmt.D.Chitra, W/o.
    T.Dhayanithi (Late), residing at No. 15/33, Krishnamoorthi Road, Erukkancherry, Chennai, within one month from the date of receipt of a copy of this recommendation and the Government of Tamil Nadu may recover Rs.2,50,000/- each from the Respondents 1 & 2.
    (ii) This Commission also recommends to initiate disciplinary action against the Respondents 1 & 2 as per the Rules.
  30. For the foregoing reasons, this courts is of the view that there is no necessity to interfere with the order passed by the 1st respondent.
  31. With the following directions, the Writ Petitions are dismissed.
    (i) The writ petition is dismissed with cost of Rs.10,000/- each [Rupees Ten Thousand Only].
    (ii) There shall be a direction to the respondents 2 & 3 to initiate disciplinary proceedings against the writ petitioners herein and to conclude the same within a period of 6 months by following the due process of law.
    (iii) We hope that the second respondent will follow the above direction in letter and spirit.
    [S.S.S.R., J] [N.S., J]
    30.01.2024
    Index:Yes
    Speaking order: Yes
    Neutral Citation: Yes
    MSM
    To
  32. The Registrar (Law),
    The State Human Rights Commission,
    Tamil Nadu,
    No. 143, P.S. Kumarasamy Raja Salai Greenways Road, Chennai – 600 028.
    2.The Principal Secretary to Government,
    Government of Tamil Nadu, Home, Prohibition & Excise Department, Secretariat, Chennai – 600 009.
    3.The Director General of Police and Head of Police Force, Tamil Nadu, Chennai- 600 004. 
    S.S. SUNDAR, J and N. SENTHILKUMAR, J
    MSM
    W.P.Nos.3896 & 3837 of 2022
    30.01.2024

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