Monday, April 13, 2009

Of police violence and use of force


DATED : 26.11.2008




R. Krishnaswamy
S/o. Ramaswamy Theva .. Review Petitioner


1. The Director General of Police,
Chennai 600 004.

2. The Registrar,
Tamil Nadu Administrative Tribunal,
Chennai Bench, Chennai 104. .. Respondents

Review Application filed under Article 226 of the Constitution of India against the order of the Division Bench dated 16.2.2005 in W.P.No.17263 of 2004.
For Petitioner : Mr.K. Venkataramani
Senior Counsel for
Mr.M. Muthappan

For Respondent-1 : Mr.M. Dhandapani
Special Govt. Pleader
- - -
(Order of the Court was made by P.K. MISRA, J)

Heard Mr.K. Venkataramani, Senior Counsel, for the petitioner and Mr.M. Dhandapani, Special Govt. Pleader, for Respondent No.1.

2. The present Review Application has been filed to review the judgment, dated 16.2.2005, in W.P.No.17263 of 2004.

3. Learned counsel for the petitioner has submitted that punishment of compulsory retirement imposed by the Director General of Police in a suo motu review relating to the departmental proceedings is illegal inasmuch as there is no power to review a matter, which had already been approved by the departmental authorities, and since one authority had already exercised the power of review, the other authorities indicated in Rule 15(1) of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules would have no further jurisdiction to review the matter, which had already been reviewed.

4. This aspect has already been considered in the judgment delivered by the Division Bench on 16.2.2005, by observing as follows :-
"8. An analysis of the aforesaid provision makes it clear that the power of review has been given to the State Government under Rule 15(1)(i) or the Head of the Department or the Appellate Authority or any other authority specified in this behalf by the State Government. So far as the appellate authority is concerned, as contemplated under Rule 15-A(1)(iii) such power is to be exercised within six months from the date of order proposed to be reviewed. So far as any other specified authority contemplated under Rule 15-A(1)(iv) is concerned, such power is to be exercised within time as may be prescribed, and so far as the State Government or Head of the Department is concerned, such power can be exercised at any time. This power of review can be exercised by the concerned authority on its own motion, i.e., suo motu or otherwise. In other words, such power of review can also be exercised on the basis of an application, which is contemplated in Rule 15-A(3) . If the power is exercised obviously suo motu, there is no filing of any application. Under Rule 15-A(4), no application for review shall be preferred more than once in respect of the same order. Review can be made in respect of any order made under these Rules. So far as the Head of the Department is concerned, it is contemplated that he shall not have the power of review unless the appellate authority is subordinate to him. A careful analysis makes it clear that so far as suo motu power is concerned, there is no prohibition for the higher authority to issue suo motu review proceedings. The only embargo is that if the review is based on any application, such applicant cannot have a further right of filing further application for review."

In the said judgment, it was further observed :-

"10. Moreover, a perusal of the file does not indicate regarding any categorical order of the Commissioner in the purported exercise of power under Rule 15-A. It merely seems that the file had passed through the Commissioner in a routine administrative manner and the Commissioner of Police seems to have agreed with the conclusion of the enquiry officer and the disciplinary authority and thereafter, the file was forwarded to the higher authority, namely the Director General of Police. In other words, mere administrative notes have been furnished and by no stretch of imagination it can be said that an order has been passed confirming the order of punishment in exercise of power under Rule 15-A of TNPSS Rules."

5. In view of the above conclusion, we do not think that there is any error of law apparent on the face of record requiring review of the said judgment.

6. The other contention of the petitioner is to the effect that the petitioner, who was a police constable, was trying to discharge his duty and had assaulted such a person while he was discharging duty and, under such circumstances, the punishment of compulsory retirement was grossly disproportionate.

7. It is apparent that there is misconception in the mind of many police personnel and even in some other quarters regarding the scope of duty of a police official. The personnel belonging to police department are, as much bound by rule of law as any other citizen of the country and merely because they belong to an organisation wielding great power, it cannot be assumed that such police officers are authorised to break the rule of law. There is no doubt that a police official has great authority as well as onerous responsibility to maintain law and order and also to investigate into the crimes. However, it is no where contemplated that the police personnel can take law in his own hands. It is no doubt true that when a cognizable offence is committed in the presence of a police official, he has right and possibly the duty to do whatever he can do to prevent the offence and to apprehend the culprit. Similarly it is true that like any other person a police official has also a right of private defence not only of his own person but also in respect of another person. It is also true that the police official while effecting arrest can use reasonable force.

8. In the present case, as has been found by the departmental authorities, confirmed by the Administrative Tribunal, and reconfirmed by the Division Bench as per the earlier decision, a quarrel had ensued between the mother and the son, and the mother was severely abusing the son. There was no physical violence either on the part of the mother or the son. It cannot be said that any cognizable offence had been committed either by the mother or by the son, though there might have been exchange of words. While the police officer was forcing the mother and son to go to the police station, the innocent bystander intervened and stated that as to why the police was trying to meddle in the private domestic matter of the two persons concerned. At that stage, being enraged, the delinquent petitioner assaulted on the head of the latter person thereby causing a bleeding injury on the head. Under these circumstances, even when the Head of the Organisation, namely, the Director General of Police, had thought that punishment of compulsory punishment would be the appropriate punishment and the Tribunal confirmed such order, can it be said that the High Court had committed an error of law by not interfering with the order of punishment? In the above circumstances, can it be said that the punishment of compulsory retirement in respect of a police personnel, who caused serious head injury to a third person, is grossly disproportionate requiring interference by the High Court?

9. Learned Senior Counsel for the petitioner has submitted that unless a police official is allowed to wield his authority, the moral of the police force would come down which would not be in the interest of general public.

10. As we have already indicated, in the present case, the police personnel was not trying to prevent commission of any cognizable offence nor was acting in his own self-defence or the self-defence of any other person nor he was trying to effect arrest. The only fault of the bystander was that he tried to point out to the police personnel not to interfere with the private quarrel between the mother and the son. We do not think that in any civilized society wedded to the rule of law, which is considered as a basic feature of the Constitution, anyone can excuse such highhanded action of a police by taking refuge under a misplaced impression that in order to maintain law and order in a society the police is required to wield his authority, nay his lathi, even without slightest justification.

11. In view of the above, we do not see any scope to review the earlier judgment. Review Application is accordingly dismissed.



The Director General of Police,
Chennai 600 004

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