Monday, April 13, 2009

Of police violence and use of force

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 26.11.2008

CORAM

THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE A. KULASEKARAN

REVIEW APPLN.NO.23 OF 2005

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

Vs.

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
- - -
O R D E R
(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.





dpk

To

The Director General of Police,
Chennai 600 004

Matter posted today before the Supreme Court stands ajourned

The SLP filed by the policemen against the order of the High Court ordering their suspension to facilitate a proper enquiry which should have been listed on the 6th of April 2009 was listed today only to be ajourned to the 25th (?) of April 2009. In the meantime a election jittery State Government continued to placate the police by defying the court directive. One wonders why the mainstream media which made much of the lawyers boycott, keeps a grim silence on the open defiance of a court order by the State Government.

Monday, April 6, 2009

Of posters and lawyers

I dont know how many of you know this, but in april last year, a division bench of the High Court, Madras passed orders directing that no posters or digital banners can be put up without permission from the District Collector, Madras and laying down stringent conditions for the same. The Court passed orders after hearing a lawyer appointed amicus curaie in the matter. However, digital banners continue to abound and one does not see any public spirited non lawyer professional (such a category does not exist probably) doing anything to uphold the rule of law. Did I mention that newspapers do not seem to pay much heed to this too.



CM's grandson Arivunidhi files complaint
5 Apr 2009, 0303 hrs IST, TNN

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CHENNAI: Tamil Nadu chief minister M Karunanidhi's grandson MKM Arivunidhi on Saturday met the city police commissioner and complained that
miscreants had damaged banners and posters put up by his supporters in several parts of the city. The posters and banners were put up to welcome him for a function to be held in Santhome to inaugurate the activities of a private educational trust on Sunday.

Arivunidhi is the son of actor M K Muthu, Karunanidhi's eldest son born to his first wife. Muthu's family had reunited with the Chief Minister's family a few months ago after an estrangement that lasted nearly two decades.

"It is unfair to tear off the banners and posters. I suspect the handi-work of anti-social elements in this incident. It is not a political function. I have been informed that at least 15 to 20 posters have been damaged along Anna Salai till Saidapet," Arivunidhi said.

"I am not sure if the anti-socials belong to any political party. But this function is a non-political programme organised for a social cause," Arivunidhi said. Senior musicians M S Viswanathan and Ramamurthy are slated to participate in the musical event, which Arivunidhi will inaugarate on Sunday.

More hooligan lawyers- courtesy times of India chennai edition 6/04/09

Lawyer saves teen girl from prostitution racket, 4 held
5 Apr 2009, 0245 hrs IST, TNN

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CHENNAI: A woman lawyer backed by an NGO rescued an 18-year-old girl who was forced into prostitution by a gang in Villupuram. Based on the
lawyer's complaint, police arrested a pimp and three women who had forced the girl into the flesh trade.

The victim's mother, a construction employee, had eloped with a worker, abandoning her daughter in Puducherry. According to the lawyer, PA Lucie, she came to know about the girl, Vasanthi (name changed), on March 18 from an NGO volunteer in Puducherry. "We went to the particular place in Puduchery where the girl was confined to a small room in a house and used for prostitution. We rescued the girl and she stayed with me," Lucie said.

Police arrested the pimp, Stephen Raj, and the three women - Logeswari, Lakshmi and Poongavanam - for initiating the girl into prostitution. Initial inquiries with the girl revealed that she had been shifted from place to place - Villupuram, Salem, Tiruchi and other cities in Tamil Nadu - and forced to entertain men and make money. Police have launched a search for a few others involved in the racket.

According to sources, Vasanthi stayed with her mother Ilavarasi in a house in Puducherry. They had left their native village Karungkuzhi, near Villupuram, after Ilavarasi's husband Vaidyalingam died. Ilavarasi had begun working as a construction employee. Trouble started in Vasanthi's life when Ilavarasi eloped with a maistry', leaving her teenage daughter. The house owner then drove Vasanthi away. Learning about her problems, a neighbour Sathya came forward to help her on the pretext of offering her the job of a domestic maid. Sathya sold Vasanthi for a meagre amount to a prostitution agent in Puducherry who later sold her to other agents.

"The prostitution agents have a nexus with politicians and some tainted officers," Lucie said.

Thursday, April 2, 2009

DMK obviously learns from its experience-Courtesy Times of India 12th August 2001

chennai: at least two persons were killed sunday in police firing and as violence and arson marred a rally organised by the dmk here to protest againt police excesses against party chief and former chief minister m karunanidhi and two union ministers. more than 100 people were injured in the violence. unconfirmed reports, however, said the number of dead could be six. the dead are supposed to be dmk activists. police said one dmk activist, s murugan, was killed and two received bullet wounds when they opened fire on violent dmk activists close to the venue of the rally at seerani arangam near marina beach. over 100 people, including some journalists and police officials, were injured in lathi-charge and bursting of teargas shells by police after at least three vehicles, including a jeep, were set on fire and scores of others damaged by the rallyists. tv cameras were smashed and lensmen and journalists were beaten up in front of the dgp's office when they were recording the burning of some vehicles. police said they fired teargas shells as the rallyists threw stones at police and some vehicles near the director general of police's office at seerani arangam near marina beach. a jeep and a bus were set ablaze prompting the police to use batons, lob teargas shells and finally open fire to disperse the crowd. when lensmen and tv camera crew attempted to record the incident, police smashed their cameras and beat them up. cameramen of ani and aaj tak television news channels among those injured. former dmk mp mohammed saki was among those injured. karunanidhi accused the police of creating trouble in the peaceful rally. he called for a probe by a sitting supreme court judge into what he called "the instances of the violation of the constitution by jayalalitha government". for good measure, bloodied dmk activists joined karunanidhi on the dais to testify to the "police brutality" and add to the list of "constitutional infringements" by the aiadmk government. after the rally, karunanidhi rang acting governor c rangarajan in hyderabad to complain against the violence. rangarajan, who is the governor of andhra pradesh but holds temporary charge of tamil nadu, is expected here on monday. the dmk activists flooded the city as they gathered for the three hour long procession flagged off by chennai mayor and dmk youth wing president m k stalin to protest against the 10 km-long procession that began at 3.45 pm from saidapet, weaved down nandanam, chamiers road, radhakrishnan salai to culminate at the seerni arangam on the sands of marina for a public meeting later in the night. the crowd, which came from all parts of the state was almost uncontrollable, though karunanidhi appealed for a peaceful demonstration. the trouble began when dmk workers pulled down a cut-out of tamil nadu chief minister and aiadmk supremo j jayalalitha near radhakrishnan road leading to the rally venue. dmk activists held up movement of vehicles for some time on the outskirts of the city and police seized from them sickles and sticks. the times of india office building on chamiers road was stoned by some rallyists. the attack was first targetted at the security personnel. however, as the procession went past some processionists threw stones at the building. the incident occurred between 5 and 6.30 pm. festoons, posters depicting scenes of karunanidhi's arrest, flags and hoardings lined the route. the processionists shouted slogans against the chief minister j jayalalitha and city police commissioner k muthukarupan. no buses or autorickshaws plied the route taken by the procession. party cadres arrived in the city in the morning from various villages all over the state and were seen sightseeing on the beaches. they flocked the arterial anna road from saidapet to the dmk party office, anna arivalayam. the procession, led by the youth wing, was joined by the party's women's wing, students wing, lawyers wing, literary wing, farmers wing, weavers wing, fishermen wing and film personalities of the parties. the public meeting was addressed by frontline leaders of the party, including karunanidhi, decrying the police excesses and the tamil nadu government's reluctance to take action against the police officials.

Wednesday, April 1, 2009

All Fools Day

It is the first of April 2009 and the suo motu matter and the writ petitions filed by the various bar associations are yet to be listed. The Government is yet to take action as directed by the High Court. Before the Supreme Court of India, reports indicate that the appeals filed by the policemen are unlikely to be listed before the 9th of April 2009. Till then, it is clear that the Government will continue to ignore the law and court diktat.