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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.10.2009
C O R A M:
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
and
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
W.P.Nos.3335, 3703, 3704, 3705 and 3910/2009
and Connected M.Ps. and M.P.S.Rs.
&
Crl.O.P.Nos.4085, 4287 and 4434/2009
W.P.No.3335 of 2009
(Suo Motu Taken up (PIL) WP)
1. The Chief Secretary to
the Government of Tamil Nadu
Fort Saint George, Chennai * 9
2. The Home Secretary to Government,
Fort Saint George, Chennai * 9
3. The Director General of Police,
Chennai * 4
4. The Commissioner of Police,
Greater Chennai, Chennai * 8.
5. The Secretary,
Union of India,
Department of Personnel and Training,
New Delhi * 1
6. The Director,
Central Bureau of Investigation,
Shastri Bhavan, Chennai.
7. The Registrar General,
High Court, Madras.
8. The Advocate General,
High Court, Madras.
9. The Additional Solicitor General of India.
High Court, Madras.
10.The Secretary,
Bar Council of Tamil Nadu & Pondicherry,
High Court Buildings, Madras.
11.The Secretary,
Madras Bar Association,
High Court, Madras.
12.The Secretary,
Madras High Court Advocates Association,
High Court, Madras.
13.The Secretary,
Women Lawyers Association,
High Court, Madras.
14.The Secretary,
Law Association,
High Court, Madras.
15.The Secretary,
Tamil Nadu Advocates Association,
High Court, Madras.
W.P.No.3703 of 2009
Women Lawyers' Association
rep. By Ms.V.Nalini, Secretary,
High Court Building,
Chennai * 600 104. ... Petitioner
Vs.
1. Government of Tamil Nadu,
rep. By Secretary, Home Dept.
Secretariat, Fort St. George,
Chennai * 600 009.
2. The Director General of Police,
Office of the DGP,
Kamarajar Salai,
Chennai * 600 004.
3. The Inspector of Police,
B-2 Esplanade Police Station,
Chennai * 600 104. ... Respondents
W.P.No.3704 of 2009
M.Velmurugan
Secretary, Madras High Court Advocate Association,
High Court buildings, Madras- 600 104. ... Petitioner
Vs.
1. The State of Tamil Nadu
Rep. by its Secretary,
Home Department,
Fort St. George, Madras * 600 009.
2. The Commissioner of Police,
Egmore, Chennai * 600 008.
3. The Director General of Police,
Kamaraj Salai,
Madras * 5.
4. The Joint Commissioner of Police,
North Chennai, Madras.
5. The Addl. Commissioner of Police,
Rajaji Salai, Madras * 8
6. The Assistant Commissioner of Police,
North Madras, Rajaji Salai, Madras * 1
7. K.P. Jain, IPS,
Office of the Director General of Police,
Kamaraj Salai,
Madras * 5.
8. K. Radhakrishnan, IPS
Office of the Commissioner of Police,
Egmore, Chennai * 600 008.
9. Ramasubramaniam, IPS
The Joint Commissioner of Police,
North Chennai, Madras.
10.A.K.Vishwanathan,
Office of the Addl. Commissioner of Police,
North, Madras * 600 001. ... Respondents
W.P.No.3705 of 2009
The Madras High Court Advocates Association
represented by its President
Mr.R.C. Paul Kangaraj
High Court Buildings,
Chennai * 600 104. ... Petitioner
Vs.
1. The Union of India,
Rep. by its Secretary to Government,
Ministry of Home Affairs,
New Delhi.
2. The State of Tamil Nadu
Rep. By its Chief Secretary,
Fort St. George, Chennai * 600 009.
3. Secretary to Government,
Home, Excise & Prohibition Department,
Government of Tamil Nadu,
Fort St. George, Chennai * 600 009.
4. Ms. S.Malathi,
Principal Secretary to Government,
Home, Excise & Prohibition Department,
Fort St. George, Chennai * 600 009.
5. The Director General of Police,
Office of the Director General of Police,
Kamaraj Salai, Chennai * 600 005.
6. Mr.K.P.Jain,
Director General of Police,
Kamaraj Salai, Chennai * 600 005.
7. The Commissioner of Police,
Office of the Commissioner of Police,
Egmore, Chennai * 600 008.
8. Mr.K.Radhakrishnan
Commissioner of Police, Chennai City,
Egmore, Chennai * 600 008.
9. Mr.T.Rajendran,
Additional Director General of Police,
(Law and Order)
Chennai * 600 005.
10.Mr.A.K.Viswanathan
Additional Commissioner of Police,
Chennai * 600 009.
11.J.Ramasubramani
Joint Commissioner of Police (Chennai North),
Presently DIG, Coimbatore Range. Coimbatore.
12.The Registrar General,
High Court, Madras.
13.The Central Bureau of Investigation,
Represented by its Director,
New Delhi. ... Respondents
W.P.No.3910 of 2009
The Tamil Nadu Advocate's Association,
rep. by its Joint Secretary,
No.196, New Addl. Law Chambers,
High Court, Chennai * 600 104 ... Petitioner
Vs.
1.The Chief Secretary,
State of Tamil Nadu,
Secretariat, Fort St. George, Chennai * 600 009.
2.The Director General of Police,
Kamarajar Salai, Chennai
3.R.Radhakrishnan,
Commissioner of Police, Chennai
O/o, The Commissioner of Police,
Egmore, Chennai - 600 008.
4.Anup Jaiswal,
Additional Director General of Police, (Intelligence)
O/o. The Director General of Police,
Mylapore, Chennai * 600 004.
5.K.Viswanathan,
Additional Commissioner of Police, Chennai.
O/o. The Commissioner of Police,
Egmore, Chennai * 600 008.
6.T.Rajendran,
Additional Commissioner of Police, Chennai
O/o. The Commissioner of Police,
Egmore, Chennai * 600 008.
7.Sunil Kumar,
Additional Commissioner of Police, (Traffic) Chennai.
O/o. The Commissioner of Police,
Egmore, Chennai * 600 008.
8.Ramasubramaniam,
Joint Commissioner of Police, (North Chennai)
O/o. The Commissioner of Police,
Egmore, Chennai * 600 008.
9.Sandeep Roy Rathode,
Joint Commissioner of Police, (Central Chennai)
O/o. The Commissioner of Police,
Egmore, Chennai * 600 008.
10.Gunaseelan,
Joint Commissioner of Police, (Central Chennai)
O/o. The Commissioner of Police,
Egmore, Chennai * 600 008.
11.M.C.Sarangan,
Deputy Commissioner of Police,
Kilpauk District,
G-3, Kilpauk Police Station Campus, Chennai.
12.Prem Anand Sinha,
Deputy Commissioner of Police,
Flower Bazaar District,
B-1, North Beach Police Station Campus, Chennai.
13.Paneerselvam,
Deputy Commissioner of Police,
Pulainthope District.
P-2, Otteri Police Station Campus, Chennai.
14.T.S.Anbu,
Deputy Commissioner of Police,
Anna Nagar District,
K-4, Anna Nagar Police Station Campus, Chennai
15.Sridar,
Deputy Commissioner of Police,
Adyar District, J-2, Adyar Police Station Campus,
Chennai.
16.Joshi Nirmal Kumar,
Deputy Commissioner of Police, (Traffic South) Chennai.
17.Thirugnanam,
Deputy Commissioner of Police, (Traffic North)
G-3, Kilpauk Police Station Campus,
Chennai. ... Respondents
CRL.OP.No.4085 of 2009
S.Doraisamy,
Advocate, No. 223, N.S.C.Bose Road,
Y.M.C.A.Building, 2nd Floor,
Chennai * 600 001. ... Petitioner
Vs.
1. The Deputy Superintendent of Police,
Central Bureau of Investigation,
Rajaji Bhavan, Chennai.
2. State: Inspector of Police,
B-2, Police Station,
Esplanade, Chennai * 104. ... Respondents
CRL.OP.No.4287 of 2009
Mr.S.Sivakumar ... Petitioner
Vs.
1. The State of Tamil Nadu,
rep. by Inspector of Police,
High Court Police Station,
now closed and functioning at
West Side Gate Entrance of the High Court of Madras
i.e. B.2 Esplanade Police Station, Chennai * 600 104.
2. The Union of India,
rep. by its Chief Investigating Officer and
Superintendent of Police,
Central Bureau of Investigation
(Special Investigation Team)
C. Wing A. Block. III Floor,
SCB Annx, Rajaji Bhawan
Besant Nagar, Chennai * 600 090. ... Respondents
CRL.OP.No.4434 of 2009
JB Solomon Peter Kamaladoss ... Petitioner
Vs.
The Inspector of Police,
B2-Esplanade Police Station,
Chennai-600 001. ... Respondents
PRAYER IN W.P.No.3703 of 2009: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Mandamus to take legal measures to adjudicate and take further action regarding the violence and incidents that took place on 19.02.2009 and consequently take criminal action by registering FIR against all the police personnel who were deployed for the said purpose and compensate for the damages to life and property of the lawyers and other persons inside the court campus and grant such other reliefs.
PRAYER IN W.P.No.3704 of 2009: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Mandamus to direct the 1st respondent to initiate penal action against the respondents 7 to 10 and the Swift Action Force under the provisions of Unlawful Activities (prevention) Act, 1967, as amended by Act 35 of 2008, and further recover the damage done to properties of the State and the public from them by appointing an assessor/ Valuer.
PRAYER IN W.P.No.3705 of 2009: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Mandamus to direct the respondents 2 and 3 immediately initiate appropriate proceedings, both criminal and disciplinary against respondents 6, 8-11 and their subordinates concerned who had a role to play in the police atrocities within and in proximity to the High Court premises on 19.02.2009, direct investigation and prosecution by the Central Bureau of Investigation, the 13th respondent herein in regard to the said incidents, direct payment of Rs.5,00,000/- as compensation to each victim of police brutality, compensation for damage and loss to property, both public and private.
PRAYER IN W.P.NO.3910 of 2009: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Mandamus to direct the 2nd respondent to furnish a list of police officers and subordinate police personnel who had indulged in unleashing terror inside the High Court campus on 19.02.2009 to this Hon'ble Court at the earliest point of time as may be fixed by this Hon'ble Court, pending disposal of the above Writ Petition.
PRAYER IN CRL.OP.No.4085 of 2009: Criminal Original Petition filed under Section 482 of Cr.P.C praying to register a case on the complaint given by the Petitioner dated 21.02.2009 on the file of the 2nd respondent and to arrest all the accused and proceed with the investigation according to law.
PRAYER IN CRL.OP.No.4287 of 2009: Criminal Original Petition filed under Section 482 of Cr.P.C to issue (a) direction to register the complaint of the Petitioner dated 14.03.2009 by the first respondent to register a case and record his evidence/statement of the attack against him and further; (b) To Conduct fresh enquiry by the second respondent with the petitioner to record his statement in connection with the attack on him on 19.02.2009 with the narrated the facts and other circumstances of the case.
PRAYER IN CRL.OP.No.4434 of 2009: Criminal Original Petition filed under Sec.482 Cr.P.C. praying to direct the Respondent to register a FIR on the basis of the Petitioner's complaint dated 19.2.2009.
* * * * *
Counsel appeared for the Petitioners :
1. Mr.R.Krishnamurthy, Senior Counsel
2. Mr.T.V.Ramanujam, Senior Counsel
3. Mr.S.Prabhakaran
4. Mr.R.C.Paulkanagaraj,
5. Ms.R.Vaigai
6. Mr.V.Raghavachari
7. Mr.V.Elangovan
8. M.S.Sivakumar
9. Dr.G.Krishnamurthy
10. Mr.R.Kaaruppan,
11. Mr.R.Sankarasubbu,
Counsel appeared for the Respondents :
1. Dr.Rajeev Dhavan Senior Counsel Assisted by Mr.J.Raja Kalifulla Government Pleader for all Police Officials in Official Rank and Personal Capacity except Mr.A.K.Viswanathan, Mr.Sandeep Rai Rathore and Mr.J.Ramasubramani.
2. Mr.P.S.Raman, Advocate General Assisted by Mr.M.Dhandapani Special Government Pleader for Chief Secretary, Home Secretary to Government of Tamil Nadu and Director General of Police.
3. Mr.M.Ravindran Additional Solicitor General of India Assisted by Mr.P.Chandrasekaran SCGSC for Union of India
4. Mr.N.Chandrasekar, Special Public Prosecutor for CBI
5. Mr.I.Subramaniam Senior Counsel Assisted by Mr.P.N.Swaminathan for Mr.Sandeep Rai Rathore.
6. Mr.V.Selvaraj for Mr.A.K.Viswanathan
7. Mr.P.N.Prakash for Mr.J.Ramasubramani
8. Mr.R.Muthukumaraswamy Senior Counsel Assisted by Mr.A.Jenasenan for Registrar General, High Court, Madras.
* * * * *
C O M M O N O R D E R
F.M.IBRAHIM KALIFULLA, J.
1. I have had the advantage of perusing the order of Mrs.Justice R.Banumathi, who has dealt with the issue involved in these writ petitions in depth, covering every one of the issues raised, contentions made and authorities cited in support of such contentions. I fully concur with every one of the reasoning and conclusions of the illuminating order of the learned Judge. However, I on my part, wish to add my own reasoning and conclusions for our ultimate directions contained in paragraph Nos.602 to 607 of this order.
2. Broad spectrum of this public interest litigation and the connected writ petitions as well as other criminal original petitions concerns the State police, lawyers and the Court.
3. The facts which led to the initiation of the suo motu public interest litigation by this Court are that the members of the Bar went on an indefinite boycott of Courts on and from 29.01.2009, alleging that the Government was not taking any action to stop the genocide of Tamils in Sri Lanka. As part of their agitation, some lawyers entered the First Court presided over by the Hon*ble Acting Chief Justice where some of the lawyers who were attending to their cases were asked to join the boycott. One learned senior counsel by name Mr.A.E.Chellaiah and his wife advocate Mrs.Vasanthi, were stated to have been abused by the agitating lawyers. The boycott, which commenced on 29.01.2009, continued and was gaining momentum. Several other incidents as part of agitation of the lawyers was also reported on various dates.
4. On 17.02.2009, Dr.Subramaniam Swamy as party-in-person stated to have appeared before the Bench presided over by Hon*ble Mr.Justice P.K.Misra and Hon*ble Mr.Justice K.Chandru, for getting himself impleaded in a case related to a temple situated at Chidambaram. Around 11.45 a.m. some of the agitating lawyers stated to have entered the Court Hall of Hon*ble Mr.Justice P.K.Misra Bench and apart from abusing and assaulting Dr.Subramaniam Swamy, stated to have thrown eggs at him, under the direct gaze of the Hon*ble Judges. In fact the Judges frowned upon the misbehaviour of all those lawyers and recorded the same in their order dated 17.02.2009. A copy of which was forwarded to the Hon*ble Acting Chief Justice for appropriate action and the Registry was also directed to send a copy of the said order to the Hon*ble Chief Justice of India.
5. The then Commissioner of Police addressed a communication dated 17.02.2009, to the Registrar General pointing out the unsavory incident that took place in Court Hall No.3 and sought for the concurrence to register a criminal case and set the criminal law in motion against those advocates. The Registrar General by a communication dated 18.02.2009, informed the Commissioner of Police that it is for the police to register any criminal case on its own and the concurrence of the Registry is not required in law.
6. The case which was posted on 17.02.2009, before the 3rd Court was adjourned to 19.02.2009. On 18.02.2009, according to the Commissioner of Police, there was a meeting convened by the Hon*ble Acting Chief Justice in his Chamber, that the Hon*ble Acting Chief Justice while deploring the incident of 17.02.2009, told the police to be firm in taking action against the erring advocates.
7. On 19.02.2009, according to the Commissioner of Police, there was a specific intelligence input from the Intelligence Section of the City Police and the State Special Branch CID that the advocates who were involved in the incident on 17.02.2009, in the 3rd Court Hall would create serious problems when Dr.Subramaniam Swamy was scheduled to visit the High Court in connection with a matter before the Hon*ble Acting Chief Justice and in the 21st Court.
8. On 19.02.2009, the Commissioner of Police arranged for a heavy police guard in the High Court campus in order to ensure that no untoward incident takes place at the time of the visit of Dr.Subramaniam Swamy. Dr.Subramaniam Swamy stated to have appeared before the Court presided over by the Hon*ble Acting Chief Justice as well as the 21st Court and left the High Court campus around 11.30 am.
9. The heavy police guard under the leadership of the jurisdictional Joint Commissioner of Police Mr.M.Ramasubramani was stated to have been withdrawn from the High Court campus to B-2 Police Station situated outside the High Court campus for debriefing by around 11.30 am. While so, according to the police around 12.00 noon M/s.Vijendran and Kunaraja, Advocates came to B-2 Police Station and asked for the list of accused advocates involved in the incident dated 17.02.2009, and stated that they wanted to surrender themselves.
10. According to the jurisdictional Joint Commissioner of Police who dealt with the said claim of surrender would state that two of the advocates namely Mr.Vijendran and Mr.Kunaraja approached him in B-2 Police Station and stated that they would surrender the advocates before the police immediately. The Joint Commissioner of Police would state that those advocates wanted the list of accused, that though one of the advocates namely Mr.Vijendran also figured as an accused was to be arrested, since Mr.Vijendran promised to bring all the accused positively for surrender, he decided not to arrest him in a haste and asked his officers to give him time to keep up his promise.
11. According to the Joint Commissioner of Police, the debriefing of the police force was withdrawn awaiting the surrender of wanted accused advocates. Therefore, the police force which was withdrawn from the High Court campus at 11.30 a.m. was stated to have been made to wait till 2.00 p.m. It is stated that Mr.Karuppan, another advocate led Messers Rajnikanth, Vijendran, Pughazhendi and Jayakumar along with large number of advocates to B-4 Police Station located inside the High Court campus and represented that the advocates who were accused in the 17.02.2009 incident wanted to surrender. It is also stated that when the police wanted to take them into custody, Mr.Karuppan supported by other advocates insisted registration of a case against Dr.Subramaniam Swamy as a precondition for their surrender. The jurisdictional Joint Commissioner of Police who was waiting in B-2 Police Station is stated to have rushed to B-4 Police Station along with the entire strength of police force which was kept in wait in B-2 Police Station.
12. The complaint which was registered against Dr.Subramaniam Swamy was stated to have been made under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. The said complaint was stated to have been received by the jurisdictional Deputy Commissioner of Police (Flower Bazaar) Mr.Prem Anand Sinha, who in turn directed the Inspector of Police Mr.Sethuraman of B-4 Police Station to register a case. A case was stated to have been registered in Crime No.14 of 2009, under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act read with Section 506(ii) IPC against Dr.Subramaniam Swamy. A copy of the FIR in Crime No.14 of 2009 was also stated to have been handed over to the advocates who thereafter wanted the arrest of Dr.Subramaniam Swamy and also refused to surrender.
13. It is the case of the jurisdictional Joint Commissioner of Police that though tension was mounting since the accused advocates involved in 17.02.2009 incident made themselves available before him in the presence of the media, his position was precarious as he would not only be accused of dereliction of duty for not arresting them but also invite criticism from all quarters. According to him, he apprehended few advocates involved in the 17.02.2009 incident and certain others who were obstructing the police from taking them into the police van, that it was at that point of time, the crowd became restive and started shouting at the police in filthy language and that a chappal was thrown at them apart from throwing stones.
14. The time was stated to have been 4.00 pm and though the advocates stated that after the arrest all the police need not remain in the premises and they can leave the premises, the policemen who were excited by the throwing of stones by the advocates were standing in a formation near B-4 Police Station which ultimately necessitated the jurisdictional Deputy Commissioner of Police Mr.Prem Anand Sinha to declare the assembly as unlawful and ordered lathi charge after consulting the senior officers including the jurisdictional Joint Commissioner of Police. After brief chase, the police force was stated to have been withdrawn to B-4 Police Station and thereafter the advocates were stated to have gathered near the Family Court and started pelting stones. It was at that point of time Hon*ble Mr. Justice A.C.Arumugaperumal Adityan was stated to have intervened to pacify the mob but was also stated to have been assaulted by the police. The learned Judge was stated to have been shifted to an ambulance for treatment, that thereafter as per the instructions of the Commissioner of Police the entire police were withdrawn from the B-4 Police Station to B-2 Police Station. Thereafter, according to the police, the advocates set fire to the B-4 Police Station and they also prevented the fire service personnel from putting out the fire by pelting stones and a lathi charge was ordered to bring the situation under control. It was around 5.35 pm the B-4 Police Station was stated to have been ransacked.
15. Be that as it may a reference to the order of the Full Bench dated 19.02.2009, discloses that when the Court was in session, at about 3.30 to 3.45 pm., on hearing unusual noise, when enquiries were made, the Court was informed that large number of special police (Riot Police) personnel with lathis or guns have entered the Court premises and were pelting stones on the lawyers apart from making lathi charge. The vehicles parked inside the Court campus were stated to have been smashed in the process. The Hon*ble Acting Chief Justice was stated to have immediately contacted the Commissioner of Police and the Chief Secretary over phone and directed them to remove the police force immediately from the High Court campus in as much as it entered without the permission of the Court or the Acting Chief Justice. Many of the learned Judges who also raised from the Court stated to have witnessed the gory incident. The Court was also informed about the assault on the Hon*ble Mr. Justice A.C.Arumugaperumal Adityan. The order also states that the police were found chasing the persons inside the Court Halls and lathi charged the lawyers, staff and others. The situation was stated to have been beyond control and that the police force did not go out of the campus while the Commissioner of Police telephonically informed that he is in the Police Station and trying to get the police out of the campus. Subsequently, though the Commissioner of Police informed the Court that the police personnel have been removed from the campus, they were chasing the advocates who were coming outside the Court campus by beating them mercilessly. At about 5.30*5.45 pm it is stated that the Court learnt the police force had gone outside the campus. At that point of time, B-4 Police Station was stated to have been set on fire and on a query, the Commissioner of Police alleged that the advocates set fire to the Police Station while many of the lady lawyers present in the Court Hall and others informed that the police themselves set fire to the Police Station and were throwing the blame on the lawyers.
16. The Court summoned the Chief Secretary, Home Secretary, Director General of Police, Commissioner of Police as well as some other officers and in the presence of number of lawyers, the Full Bench passed its order at about 6.40 pm in the presence of the Government Pleader, who also stated to have witnessed the incident. The Chief Secretary, Home Secretary, Director General of Police and the Commissioner of Police gave their statement with the following undertakings:
*2**.(i) The Commissioner of Police, Chennai, stated that some of the injured lawyers have been taken for treatment, but no arrest has been made.
(ii) The Home Secretary states that no lawyer will be taken in custody in connection with today*s incidents. After proper police investigation and after informing the matter to the Hon*ble The Chief Justice (Acting Chief Justice for the present), if necessary, in future, they may proceed in accordance with law.
Further undertaking is given that if any person, including the lawyers, staff of the High Court or Subordinate Court or any officer of the Court or the litigant, whoever were present inside the Court or outside N.S.C.Bose Road, Thambu Chetty Street, Armenian Street and nearby roads, if taken in custody, they will be released immediately today.
It is further undertaken that those who have been arrested today or had to surrender before the police in connection with the earlier FIR today, they will be released on personal bond to ensure that normalcy returns in the High Court.
(iii) So far as the question of enquiry and FIR lodges and investigation of today*s incidents is concerned, on behalf of the State, the Chief Secretary to Government assured that the matter will be referred to the Central Government for enquiry and investigation by the Central Bureau of Investigation.
(iv) The Chief Secretary and Home Secretary have also undertaken to treat all the persons injured in connection with today*s incident and they will be treated free of cost at the expense of the State.*
17. The said officers along with the Union of India, Director of Central Bureau of Investigation and the Registrar General of the High Court were treated as party respondents in the suo motu writ petition in public interest and in the interest of the institution viz., the High Court and the Subordinate Courts. The respondents were directed to adhere to the undertakings and failing which it was made clear that it would be treated as violation of the Court*s order. The State Government was directed to refer the matter along with a copy of the order dated 19.02.2009, to the Secretary to Government, Department of Personnel and Training, Government of India, New Delhi, who in turn was to take up the matter to the Director of Central Bureau of Investigation for action in terms of the undertaking as well as the directions issued. The Assistant Solicitor General of India was present in the Court and accepted notice on behalf of the Union of India and Central Bureau of Investigation.
18. Simultaneously three teams were constituted consisting of officers of the Registry, Government Pleader and Advocates to inspect the whole campus and take videograph that day itself to note down the damages caused to the building, vehicles and other properties. The Chief Secretary, Home Secretary, Director General of Police and the Commissioner of Police were directed to inform the content of the order to all concerned without waiting for a copy through electronic media and print media (television and newspaper). Since the Court was seized of the issue, it was stated that the members of the various lawyers association were asked to restore normalcy within the Court campus.
19. Though the case was directed to be posted on 02.03.2009, the Full Bench met again on 21.02.2009 and passed further orders. In the said order, the Full Bench which met in the residence of the Hon*ble Acting Chief Justice, directed the then Commissioner of Police and jurisdictional Joint Commissioner of Police to file a report and state as to under whose authority of the High Court, they entered the High Court premises to arrest certain accused in the campus and at whose instance the order was issued for lathi charge by the police and swift action force. They were also directed to give specific names with designation of the officers and constables at whose instance such action was taken. The initiation of suo motu contempt was decided to wait till such report is submitted to the Court. Though Ms.R.Vaigai appeared before the Full Bench for initiation of contempt proceedings, she was directed to file the said petition in the Registry.
20. On 02.03.2009, the Full Bench met again and after noting that the case registered by the CBI was not as per the orders of the Full Bench dated 19.02.2009, but was one registered as Crime No.15 of 2009 under Sections 147, 353, 332, 450, 436 & 307, IPC r/w Section 3(1) of the Tamil Nadu Properties (Prevention of Damages and Loss) Act, 1992 based on a complaint made by Sub Inspector of Police of B-4 Police Station, which was taken on record as a case to be forwarded to the CBI, while in the said Crime No.15 of 2009, there was no reference to the Court order dated 19.02.2009 and the facts mentioned therein including the timings. The Court made it clear that the respondents/authorities of the State had violated the Court order dated 19.02.2009, by not registering a case as per its order dated 19.02.2009 and the CBI was not asked to investigate the matter as per the said order dated 19.02.2009. It was specifically directed that the respondents/State authorities and Union of India should pass appropriate orders on the basis of the FIR received by them at 6.40 pm pursuant to the Court*s order dated 19.02.2009 and any other information given subsequently or at about 19.20 hours (7.20 pm) cannot be treated to be a case registered pursuant to the Court*s order. The respective Bar associations were also included as proforma respondents.
21. In the meantime, while the proceedings were being held by the Full Bench in the aforesaid manner, certain writ petitions were moved before the Hon*ble Supreme Court under Article 32 of the Constitution of India, which were taken up on file and was heard by the Hon*ble Supreme Court on 25.02.2009 and 26.02.2009 and the Hon*ble Supreme Court by an order dated 26.02.2009, appointed One Man Committee headed by Hon*ble Mr.Justice B.N.Srikrishna, former Judge of the Supreme Court to enquire into the incident which happened on 19.02.2009. The Committee was to initially consider whether any immediate action is called for against the police officers who allegedly allowed armed policemen to enter the premises of the High Court without permission of the Acting Chief Justice and file an interim report.
22. In the meantime the jurisdictional Joint Commissioner of Police and the Deputy Commissioner of Police along with two other Deputy Commissioners were transferred from the Madras city, which was noted by the Hon*ble Supreme Court in its order dated 26.02.2009.
23. The Hon*ble Supreme Court directed the Committee appointed by the High Court to assess the medical facilities provided to the injured advocates as well as reasonable compensation for the injured apart from the damages caused to the vehicles and other properties of the High Court as well as the lawyers associations. The State Government was directed to deposit a sum of Rs.25,00,000/- in the first instance at the disposal of the Committee for immediate relief. The advocates were directed not to cause any disturbance of the Court proceedings and not to shout slogans in the Court premises and that no meeting should be held in the High Court premises without the permission of the Acting Chief Justice.
24. After 26.02.2009 order, the Hon*ble Supreme Court passed further orders on 03.03.2009, 06.03.2009 and 14.07.2009. In the order dated 06.03.2009, the Hon*ble Supreme Court forwarded the interim report of the Committee headed by Hon*ble Mr.Justice B.N.Srikrishna to the State Government as well as to the Acting Chief Justice for appropriate action, if any. The Hon*ble Supreme Court also held that since the three Judge Bench was already seized of the matter regarding the incident happened in the High Court premises, suggestion to appoint a Judicial Commission was also allowed to be decided by the same Bench.
25. Subsequently, on 18.03.2009, the Full Bench passed orders holding as under:
*8. As we find that a prima facie case made out to initiate disciplinary proceeding against the concerned officers, to ensure the State Government to pass appropriate orders, we are of the view that (i) Mr.A.K.Viswanathan, IPS, Addl. Commissioner of Police (Law & Order) and (ii) Mr.M.Ramasubramani, IPS, formerly Joint Commissioner of Police (North) (Jurisdiction JCP), should be placed under suspension, as they were the persons who were in the helm of the affairs and under whose direct supervision the operation was carried on.*
26. Aggrieved against the order of the Full Bench dated 18.03.2009, the two police officers approached the Hon*ble Supreme Court by filing Special Leave Petition (Civil) No.7540 of 2009. The Hon*ble Supreme Court taking note of the fact that those officers were not heard before the Full Bench passed its order dated 18.03.2009, the Hon*ble Supreme Court felt that they should be given an opportunity of being heard by the High Court. The Hon*ble Supreme Court specifically directed that the Bench headed by the Chief Justice or any other Court can deal with the matter and shall ensure fair hearing to the counsel appearing for the SLP petitioners and other parties to the dispute. The learned counsel appearing for the lawyers also submitted before the Hon*ble Supreme Court that till such time the hearing is over, they will not proceed with their contempt proceedings. The Hon*ble Supreme Court also noted that the concerned officers were not working in the City of Chennai and that they were working elsewhere.
27. It is in the above stated background, this Suo Motu (Taken Up) W.P.(PIL) No.3335 of 2009, connected writ petitions and other petitions were directed to be posed before us by the Hon*ble the Chief Justice.
28. We commenced the hearing on 10.09.2009, and the various leaders of the Bar viz., Mr.R.Krishnamurthy, representing Madras Bar Association, Mr.R.C.Paul Kanagaraj and Ms.R.Vaigai, representing Madras High Court Advocate Association, Mr.S.Prabhakaran, representing Tamil Nadu Advocate Association Mr.T.V.Krishnakumar representing Law Association and Ms.D.Prasanna representing Women Lawyers Association and Messers N.G.R.Prasad, R.Karuppan, V.Ragavachari and T.V.Ramanujam as members of the Bar made their submissions while Mr.V.Selvaraj appeared for the Additional Commissioner of Police Mr.A.K.Viswanathan, Mr.P.N.Swaminathan, appeared for the Joint Commissioner of Police (Central) Mr.Sandeep Rai Rathore, Mr.P.N.Prakash appeared for Jurisdictional Joint Commissioner of Police Mr.M.Ramasubramani and for the rest of the police officers including the Commissioner of Police, the Government Pleader appeared who was represented by Dr.Rajeev Dhavan, Senior Advocate and Mr.P.S.Raman, learned Advocate General appeared for the State including the Chief Secretary, Home Secretary and the Director General of Police.
29. Having heard the learned counsel for the various parties we pass the following order.
30. In his submissions, Mr.S.Prabhakaran, learned counsel contended that the attack on the lawyers on 19.02.2009, was a preplanned and conspired one. He also contended that they did not have the permission of the Registry on that day. According to him while more than 100 advocates and staff were injured, no policeman was seriously injured. He would state that while cases were registered against the advocates, no case was registered against any policemen who indulged in vandalism. By referring to the affidavits of Mr.A.K.Viswanathan and Mr.Sandeep Rai Rathore, the learned counsel contended that atleast those two officers stated that they did not agree for lathi charge. The learned counsel contended that lawyers assembling inside the Court campus cannot be construed as an unlawful assembly. He further contended that by virtue of the gory incident that took place on 19.02.2009, the High Court did not function for several days while the City Civil Court and the Court of Small Causes did not function for one full week. The learned counsel stated that the police apart from injuring the lawyers, staff members and a sitting Judge of this Court also caused extensive damage to the vehicles parked inside the Court campus, Court Building including Judges Chamber, lawyers chamber and even a Judges' vehicle was not spared. He pointed out that a Crech in the women lawyers Association was also damaged by the police. The learned counsel also contended that even if the advocates wanted to surrender there was no necessity for the police to gather too many policemen. He also submitted that the relevant provisions of the Police Standing Orders (PSO) were not adhered to.
31. Mr.R.C.Paul Kanagaraj, learned counsel in his submissions contended that the Court proceedings were disrupted by the act of the police in the afternoon on 19.02.2009 and the High Court could resume work on 25.02.2009, while the City Civil Court and the Court of Small Causes could resume work only on 02.03.2009. The learned counsel therefore contended that the act of the police fall within the definition of criminal contempt under Section 2(c) of the Contempt of Courts Act and therefore they are liable to be proceeded against under the said provisions. The learned counsel contended that the Madras High Court Advocate Association only wanted to support the cause of Srilankan Tamils and not the banned organization LTTE. As far as the various acts alleged to have been indulged in by the lawyers, which was put against them, the learned counsel contended that all those acts were not by the association but by some individual lawyers for which separate cases have been filed and the association has nothing to do with those incidents. He also stated that those cases have to be individually proceeded against those persons and the same cannot be put against the lawyers to justify the incident that took place on 19.02.2009. He also contended that the incident that took place on 17.02.2009 cannot be stated to be the root cause for the gory incident that happened on 19.02.2009. The learned counsel contended that the retention of the police inside the campus between 11.30 am to 2.00 pm was unlawful for which they are liable to be proceeded against. He further pointed out that none of the 15 lawyers taken into custody were the accused in the case pertaining to the 17.02.2009 incident. According to the learned counsel, the police failed to follow the prescribed procedure under the Drill and Training Manual as well as the Police Standing Orders. He also contended that the Commissioner of Police*s failure to get the permission of the Court calls for serious action. The police personnel should therefore be punished for the offence committed by them jointly as well as individually.
32. Ms.R.Vaigai, learned counsel in her submissions stated that the stand of the State Government does not show any respite for what happened on 19.02.2009. By pointing out to certain averments contained in the affidavit of the Home Secretary to the effect that the Court did not give proper hearing before passing the order dated 19.02.2009, the learned counsel pointed out that in the very order, it was mentioned that the high level officers namely the Chief Secretary, Home Secretary, Director General of Police and the Commissioner of Police were given an in camera audience before passing of the said order. Commenting upon the stand of the Director General of Police, the learned counsel contended that he failed to discharge his responsibility by properly assessing the unsavory incident with due responsibility. According to the learned counsel neither the State nor the police have realized the enormity of what happened and therefore in order to uphold the Majesty of Law, Court should come for the rescue. The learned counsel pointed out that in the CD produced by the police nothing was recorded in between 2.21 pm and 3.48 pm and still it was not known why the police remained inside the campus and ultimately unleashed violence on the advocates. The learned counsel submitted that various false pleas made by the high level officers including the Home Secretary and the Commissioner of Police are serious insult to the Court which calls for serious action. The learned counsel pointed out that the Commissioner of Police in his counter affidavit failed to furnish the timings thereby wanted to wriggle out of the situation by making slippery statements. The learned counsel also submitted that going by the visuals in the CD which discloses the assault on the Hon*ble Judge viz., Mr.Justice A.C.Arumugaperumal Adityan, at which point of time the Commissioner of Police was very much present which was around 4.15 pm while according to him, he entered the Court premises only at 5.00 pm. By referring to para 24 of the affidavit of the Commissioner of Police dated 07.09.2009, the learned counsel contended that if that was the perception of the Commissioner of Police himself it was not known how he took the decision to allow the surrender of advocates inside the campus. The learned counsel contended that what had happened on 19.02.2009, to the Court was loss of dignity and grace of the Court which can never be erased. The learned counsel relied upon various decisions of the Hon*ble Supreme Court and contended that even in extraordinary situations permission of the Court was sought by the Police and that therefore, the privileges that are available to Parliament premises should be equally extended to the premises of the Court. The learned counsel contended that when admittedly the Commissioner of Police anticipated huge trouble, he should have taken the permission of the Acting Chief Justice and his failure to do so was a deliberate attempt on his part to unleash violence on the lawyers. According to the learned counsel, past events of the advocates cannot be telescoped to justify the gory incident that took place inside the Court premises on 19.02.2009. The lawyers are expected to be inside the Court and the attempt of the police to disperse them under the guise of unlawful assembly was a deliberate vengeantful action to teach a lesson to the lawyers and that there was absolutely no justification for the police to remain inside when there were no activities after 2.41 pm till lathi charge was made at 3.58 pm. In respect of the arrest of the lawyers also she contended that the guidelines laid down by the Hon*ble Supreme Court in the D.K.Basu case (1997 1 SCC 416) was not followed. The learned counsel therefore contended that serious action should be taken against the police personnel by way of disciplinary action as well as contempt proceedings. The learned counsel contended that in the light of the serious nature of activities indulged in by the police in order to have a fair enquiry suspension of the concerned police officers is imminent apart from initiating criminal contempt against them. The learned counsel further contended that the payment of compensation for the injured lawyers was not adequate and atleast a sum of Rs.1,00,000/- to lawyers who sustained major injuries and Rs.50,000/- for those who sustained minor injuries should be ordered.
33. Mr.R.Krishnamurthy, learned senior counsel representing the Madras Bar Association and the Women Lawyers Association contended that after Dr.Subramaniam Swamy left the Court premises at around 11.00 am, there was no reason why the police remained inside the campus and that no valid reason was disclosed by the police. The learned senior counsel pointed out that when even in respect of a cognizable offence enough discretion is given to the police officers for arresting a person, it is not known why they ventured to arrest the lawyers who wanted to surrender inside the Court campus and the said Act of the police was stage managed in order to create a situation where they can unleash violence on the Advocates.
34. Mr.T.V.Ramanujam, learned senior counsel contended that by invoking Article 215 of the Constitution of India, this Court should take appropriate action against the erring policemen. The learned senior counsel contended that it was not an innocent attack on the lawyers.
35. Mr.V.Ragavachari, learned counsel contended that even for taking into custody of 15 lawyers, the police ought to have taken permission of the Registry especially when they anticipated stout resistance from the lawyers.
36. Mr.R.Karuppan, learned counsel in his submissions stated that it was he who led the lawyers to B-4 Police Station for surrender and that the registration of the complaint against Dr.Subramaniam Swamy was delayed upto 3.00 pm by the police and that by that time all those lawyers who were connected with the incident that took place on 17.02.2009, left him in the lurch and that the police forcefully pushed into a van 15 innocent lawyers who were standing near that place. The learned counsel stated that when he was unable to surrender the lawyers as promised to the police, he gave back the FIR to the police and left that place. The learned counsel contended that the police ought not to have drawn so many policemen without the permission of the Acting Chief Justice. By referring to the Full Bench order dated 21.02.2009, the learned counsel contended that the said order made it clear that the Acting Chief Justice never gave permission to the police to enter the premises and therefore their presence was illegal. According to the learned counsel since the police indulged in all acts of violence during Court hours and disrupted the proceedings on 19.02.2009 and subsequent days, it calls for serious action of criminal contempt against the police.
37. Mr.V.Selvaraj, learned counsel appearing for the Additional Commissioner of Police Mr.A.K.Viswanathan, at the outset contended that two questions arise for consideration viz., (i) who brought the police inside and (ii) who ordered lathi charge. He contended that the Commissioner of Police wants to escape by shifting the blame on other junior officers. According to him, the Commissioner of Police misused the discussion that took place on 18.02.2009, in the Chambers of the Acting Chief Justice along with other officers. He also contended that it was the Commissioner of Police who organized the police force in the forenoon as well as the additional force in the afternoon. The learned counsel pointed out that after Dr.Subramaniam Swamy left at 11.30 am, the police force was shifted to B-2 Police Station but it was brought back to B-4 Police Station at 2.00 pm at his instance. He contended that the Additional Commissioner of Police Mr.A.K.Viswanathan entered the High Court premises only after 3.45 pm at the instance of the Commissioner of Police and even according to the jurisdictional Joint Commissioner of Police, the lathi charge was ordered only by the Deputy Commissioner of Police Mr.Prem Anand Sinha. The learned counsel contended that when according to the learned Advocate General that after the lathi charge, he went to Ramachandra Hospital at 3.45 pm to appraise the Hon*ble the Chief Minister about the incident, it can be safely held that the first lathi charge commenced at 3.00 pm and went up to 3.30 pm, while the Additional Commissioner of Police entered the High Court premises only at 3.45 pm. The learned counsel pointed out that while the Acting Chief Justice tried to contact the Commissioner of Police from 3.30 pm onwards to remove the police force from the High Court premises even at 4.50 pm, the Commissioner of Police was arranging for reinforcement of more police force. The learned counsel by referring to a call data furnished by the BSNL pointed out that the Commissioner of Police was very much inside the High Court premises at 16.27 hours i.e. 4.27 p.m. and that he alone was controlling the force. He also referred to the complaint of the Inspector of Police Jayakodi to point out that the Commissioner of Police came to B-4 Police Station at 4.30 pm. The learned counsel therefore contended that the Commissioner of Police took charge from the Additional Commissioner of Police at 4.40 pm inside the High Court premises and only thereafter the second lathi charge took place.
38. Mr.P.N.Prakash, learned counsel appearing for the jurisdictional Joint Commissioner of Police Mr.M.Ramasubramani, at the outset stated that the said officer is extending his apology openly and publicly without any qualms and that he is regretting for the incident that happened on 19.02.2009. The learned counsel also stated that the jurisdictional Joint Commissioner admitted his presence in the morning as well as in the afternoon, that he mobilized the police force and that he takes the responsibility. He however contended that he did everything in good faith. He also contended that for an unlawful assembly what was required is common object and the place is not the determinative. The learned counsel pointed out that when there was variation of things as regards the lathi charge and since the whole complaint has been referred to the CBI, it should be left to the CBI to investigate and one should not go by the order of the Full Bench dated 19.02.2009.
39. Mr.P.N.Swaminathan appearing for Mr.Sandeep Rai Rathore, Joint Commissioner of Police (Central) submitted that the Joint Commissioner of Police proceeded to B-4 Police Station as directed by the Additional Commissioner of Police on 19.02.2009 and that he was not commanding any one. He also claims that he was not involved in any of the incident and that he was also not consulted by any one. The Joint Commissioner of Police in his affidavit however stated that after the arrest of the advocates, the police ought not to have remained in the High Court premises. He also tendered an unconditional apology for what had happened inside the High Court premises.
40. Mr.P.S.Raman, the learned Advocate General appearing for the State including the Chief Secretary, Home Secretary and Director General of Police prefaced his submissions by stating that he is addressing the Court in his position as a leader of the Bar, as the Advocate General for the State, as well as, as an yeoman party in the suo motu Public Interest Litigation. While making his submissions, the learned Advocate General stated that the State does not want to take sides and that if the Court finds any one responsible for the unsavory incident that happened on 19.02.2009, the State will take appropriate action against the concerned officer as directed by this Court. While deploring about the recent trend that is prevailing amongst the lawyers in resorting to boycott for all and sundry, the learned Advocate General lamented that while carrying on a dignified profession as lawyers such absenteeism from the Court by lawyers, whatever be the reason, would cause serious prejudice to the litigant public apart from causing hindrance to the course of justice. It also to a very great extent results in degradation of the lawyers* profession in the eyes of the public at large. The learned Advocate General with heavy heart submitted that time has come where the Bar associations representing the lawyers should seriously think about any other method by which they can raise their protest instead of absenting the Courts which is not liked by the litigant public and for that matter the public at large.
41. We fully endorse the views of the learned Advocate General and here and now we want to state that there is every justification in what is stated by the learned Advocate General in the interest of the members of the Bar and the litigant public as well as the working of the Court. Therefore time has come that the leaders of the Bar should stand up to the occasion and guide the members of the Bar not to resort to boycott of Courts which is also held to be not permissible by the Hon*ble Supreme Court in the decision reported in (2003) 2 SCC 45 (Harish Uppal (Ex-Capt.) Vs. Union of India).
42. As regards the presence of the police inside the Court, the learned Advocate General contended that the High Court campus is a public place where several Judicial Forums viz., High Court, Tribunals, Small Causes Court, City Civil Court and other judicial forums are located apart from the fact that people throng the premises since the old light house is situated in the High Court premises which is one of the tourist spot for the traveling public. The learned Advocate General while drawing our attention to the Division Bench decision reported in 2007 (2) MLJ 456 (The Registrar General, High Court of Madras Vs. State of Tamil Nadu) contended that the Division Bench has directed the State to provide necessary security arrangement pursuant to which by G.O.Ms.No.395, dated 20.03.2007, the State Government passed orders in compliance with the orders of the Division Bench. The learned Advocate General also submitted that after the terrorist attack of the Parliament House, by virtue of the directives of the Union of India, high security arrangement was necessitated which resulted in the constitution of the Security Committee in the High Court itself consisting of sitting Judges of this Hon*ble Court apart from high level police officers and law officers, which Committee decided to increase the strength of the police personnel from the present level of 252 to 451. The learned Advocate General pointed out that on 19.02.2009, apart from 130 police personnel, who were already present in the Court, additional strength of 292 was drawn in all 422 police personnel for security purposes. The learned Advocate General therefore contended that by virtue of Section 149 Cr.P.C. and the above security arrangement made, the presence of the police personnel inside the Court campus on 19.02.2009, cannot be held to be against law. The learned Advocate General also contended that there is no Constitutional provision or statutory stipulations providing for immunity from any security system or police presence to the High Court premises. Lastly the learned Advocate General contended that on 19.02.2009, after the incident, he met the Hon*ble Chief Minister who was ailing and taking treatment in the Hospital and around 6.00 pm to 7.30 pm the Hon*ble Chief Minister sent a fax message to the Hon*ble Acting Chief Justice expressing his concern and regretted for whatever that happened in the High Court premises and expressed his preparedness to abide by whatever direction that the Court may issue to set right the disaster that had taken place. It was therefore contended that in pursuance of such assurance extended by the Hon*ble the Chief Minister, the Chief Secretary, Home Secretary and the Director General of Police came to the Hon*ble Acting Chief Justice chamber and agreed for whatever course of action that was directed to be made by the Full Bench in its order dated 19.02.2009. The Advocate General then contended that the State Government also constituted an independent Committee in G.O.Ms.No.229, dated 09.03.2009, appointing Dr.N.Sundaradevan, I.A.S., to enquire into the police excess and fix the responsibility on the concerned police officer and if he finds any one guilty, the State will take necessary action against the concerned persons. The learned Advocate General therefore contended that the State cannot be faulted on any account in so far as the incident that took place on 19.02.2009 is concerned and that it is prepared to abide by whatever direction that may be issued by this Court.
43. We also heard Dr.Rajeev Dhavan, learned senior counsel who appeared for 12 of the police officers other than Mr.A.K.Viswanathan, the then Additional Commissioner of Police, Mr.M.Ramasubramani, jurisdictional Joint Commissioner of Police and Mr.Sandeep Rai Rathore, Joint Commissioner of Police (Central).
44. The submissions of Dr.Rajeev Dhavan was fourfold. According to him the questions which are required to be considered are (i) whether the presence of the Police in the High Court can be faulted? (ii) what value one can attach to the report of Mr.Justice B.N.Srikrishna? (iii) was there any consistency in the evidence placed before this Court on behalf of the lawyers, on the other hand they were contradictory in nature and (iv) was there a police conspiracy at all? Lastly the learned counsel also made his submissions as to the relief that can be granted in these proceedings.
45. Elaborating his submissions, the learned senior counsel contended that the entry of the police into the High Court premises on 19.02.2009, was imminent in the light of the threat perception to men and material. The learned senior counsel therefore contended that the presence of the police force inside the High Court campus cannot be decried. According to him the arrest of the lawyers was not at the initiative of the police but at the instance of those lawyers themselves who came forward to surrender.
46. As far as the efficacy of the report of Mr.Justice B.N.Srikrishna, it was pointed out to the learned senior counsel that in as much as the whole gamut of the case with all details and particulars having been placed before the Court, there is no need to be guided by the report of Mr.Justice B.N.Srikrishna which is only an interim report and therefore this Court can independently assess and analyse the various materials and draw its own conclusion. Therefore, the learned senior counsel did not address any argument based on Mr.Justice B.N.Srikrishna*s report. In fact when Mr.S.Prabhakaran, representing the lawyers wanted to make comments upon the report of Mr.Justice B.N.Srikrishna, this Court made it clear to the learned counsel that it wanted to assess the whole issue and reach its own conclusion independently and therefore, there was no need to refer to Mr.Justice B.N.Srikrishna*s report in the course of the submissions by any one.
47. In fact the Hon*ble Supreme Court in its order dated 06.03.2009, while sending the interim report of Mr.Justice B.N.Srikrishna to the State Government as well as to this Court left it to the discretion of this Court to deal with the said report. Dr.Rajeev Dhavan therefore did not deliberate upon the report of Mr.Justice B.N.Srikrishna in the course of his submissions.
48. As far as the scope of any disciplinary action against any of the police officers whom if this Court ultimately finds responsible for the gory incident that took place on 19.02.2009, the learned senior counsel contended that such a course of action would be governed by Articles 309 to 311 of the Constitution and the holding of enquiry including suspension can be dealt with only by an appropriate disciplinary authority in accordance with the Constitutional provisions and the rules framed thereunder.
49. As far as the scope of initiating any contempt action against any of the officers based on the ultimate conclusion of this Court, the learned senior counsel contended that it would be too wide a proposition, for the counsel representing the lawyers, to claim immunity or privilege for the High Court premises in comparison with the Parliament or the Assembly. The learned senior counsel would however state that the Court will have to analyze the issue of contempt by examining the same from the point of view of the *intent* of the concerned police officers but not by mere excessive action or other misdeeds.
50. On the relief aspect, the learned senior counsel fairly submitted that whomsoever suffered any physical injury or other damages should be compensated by considering payment of ex gratia instead of attempting to measure the actual suffering or damages.
51. Out of 12 police officers for whom the learned senior counsel made his submissions, he pointed out that Messers A.M.S.Gunaseelan, Joint Commissioner of Police (South), T.S.Anbu, Deputy Commissioner of Police (Anna Nagar) and C.Sridhar, Deputy Commissioner of Police (Adyar) arrived at the scene of occurrence only at 5.00 pm and therefore, by no stretch of imagination they can be held to have had any role to play. As far as Mr.R.Thirugnanam, Deputy Commissioner of Police (Traffic-North) and Mr.K.Joshi Nirmal Kumar, Deputy Commissioner of Police (Traffic-South) are concerned, the learned senior counsel pointed out that they were actually in charge of traffic arrangements and therefore their presence did not have anything to do with the incident of lathi charge, in as much as they had no role to play on that aspect and that merely because they were officers and they were present at the time of occurrence they cannot be roped in. The learned senior counsel also pointed out that there was no specific allegation against those officers as to any specific act of overt act on their part. According to the learned senior counsel, the test is as to whether any police officer committed breach of statutory duty and even going by the stance of the Government, the officers whomsoever responsible alone should be punished.
52. The learned senior counsel submitted that there was absolutely no basis for the allegation of conspiracy leveled against either the Commissioner of Police or other police officers. According to him, when the police officers carried out their duties out of necessity for maintaining any law and order situation and public tranquility they should be given full protection.
53. The learned senior counsel by drawing the attention of this Court to various G.Os. and other steps taken by the Court including arrangements made by the Security Committee headed by senior Judges of this Court for the protection of the High Court premises and also the various criminal cases pending against various lawyers, numbering more than 90 submitted that there was a real threat perception that was prevailing which reached its peak on 19.02.2009 and therefore the presence of police in large number was necessitated inside the premises. He also contended that the intelligence report also reminded of the serious threat perception prevailing and that the police acted based on such intelligence report and the same cannot be faulted on the footing that they did not obtain the prior permission of the Registry. He also relied upon an earlier Division Bench decision of this Court reported in (2007) 2 MLJ 1 (Madras High Court Advocates Association Vs State of Tamil Nadu) and the judgment of the Hon*ble Supreme Court reported in (2003) 2 SCC 45 (Harish Uppal (Ex-Capt.) Vs. Union of India). He also made a reference to the incident that took place inside the Court Hall on 17.02.2009, when some 15 advocates behaved in an unruly manner inside the Court Hall and contend that such activities of the lawyers contributed more to the threat perception for the police to act in the campus on 19.02.2009. By referring to the various incidents that took place in and around the High Court campus at the instance of the lawyers, the learned senior counsel contended that the threat perception was very much in existence for the police to act on 19.02.2009 and this Court should not substitute its own opinion about the threat perception assessed by the police authorities. The learned senior counsel however came forward to tender an unconditional apology on behalf of all the police officers for whatever happened on 19.02.2009. According to him as there was no mala fide motive there would be no scope for proceeding against the police officers for contempt. He also contended that on a combined reading of Section 52 IPC and Section 132 of Cr.P.C., it can be seen that unless there is want of good faith, the conduct of the police officers and other persons will not warrant any action against them either by way of disciplinary proceedings or by way of criminal proceedings or by way of contempt. According to him there was no reasonable ground for proceeding against them. The action of the police at best can be construed as an error of judgment and not an intentional onslaught unleashed against the lawyers as contended by the lawyers. The learned senior counsel strenuously contended that the attempt of the lawyers to brand the police action on 19.02.2009, by calling it as an *Operation Black Coat* has absolutely no basis and to call it the least it was a bogus allegation.
54. The learned counsel also contended that in any event the incident that happened at 5.00 pm cannot be attributed to the Commissioner of Police and he cannot be proceeded against either by way of disciplinary action or for contempt.
55. The learned senior counsel contended that the Court can consider payment of any ex gratia either by itself or by referring to a retired Judge of this Court to determine.
56. The learned senior counsel strongly condemned the political parties attempting to use the High Court premises as their propaganda platform and that the lawyers should not give scope for any one to enter the campus with that intent. According to him the root cause for all the problems was not the presence of the police inside the campus but the political involvement of the lawyers and their activities inside the campus.
57. The learned senior counsel also pointed out that the State Government has taken the necessary initiative by appointing One Man Committee headed by Dr.N.Sundaradevan, I.A.S., to enquire into the matter in order to ascertain as to any one responsible for the gory incident that took place on 19.02.2009 and that the lawyers can cooperate with the said Committee to pin down the person responsible. It was further contended that since as per the direction of this Court, the CBI has been entrusted with the task of investigation, this Court should permit such agency to carryout its task in accordance with law and there cannot be any parallel enquiry by this Court in this proceeding. According to him what can be done by way of judicial process cannot be done by way of pre-emptive measure, which will amount to anticipatory mala fides. The learned counsel therefore contended that there was no basis for placing the officers under suspension and the suspension order by the Full Bench dated 18.03.2009, should be withdrawn.
58. The learned senior counsel submitted that if for any reason this Court concludes that initiation of contempt proceedings is warranted, the same need not be ordered in as much as the respondents whom he represent offer unconditional apology in advance and that their apology should be accepted and they should be relived.
59. Mr.R.Muthukumarasamy, learned senior counsel representing the High Court placed before this Court a report filed by the Registrar General which states that due to the incident that occurred on 19.02.2009, extensive damage was caused to Court buildings and vehicles and that the Court proceedings were disrupted after 4.00 pm because of the gory incident, glass pieces were strewn all over the premises and the damaged vehicles were parked in haphazard manner and therefore the High Court and the Subordinate Courts inside the High Court campus remain closed initially on 20.02.2009 and thereafter on 23.02.2009 and 24.02.2009. The Court campus was stated to have been subsequently cleaned and the Courts in the State commenced functioning only on 25.02.2009, though the boycott by the advocates continued till 20.03.2009. In the said report the Registrar General has also furnished the details about the compensation paid to the vehicle owners as well as for the personal injuries suffered by the advocates and others apart from the medical expenses incurred for the injured. Annexures 1 to 3 has also been filed along with the report furnishing the details of extent of damages caused to the vehicles and the details of compensation awarded for personal injuries.
60. The learned senior counsel by referring to Article 215 of the Constitution submitted that the power of the High Court is plenary, as superior Court of Records. He also contended that whether or not grant of permission by the Registry is required for the police to enter, the question is can the police exceed their limit inside the Court premises, which would call for any stern action. The learned senior counsel referred to the decisions of the Hon*ble Supreme Court reported in AIR 1967 SC 1 (Naresh Shridhar Mirajkar Vs. State of Maharashtra) and AIR 1993 SC 1014 (M.V.Elisabeth Vs. Harwan Investements and Trading Private Limited, Goa) in the course of his submissions.
61. In their reply argument Mr.S.Prabarkaran and Mr.R.C.Paul Kanagaraj contended that this Court should proceed against the police officers straightaway for contempt and impose punishment and no further opportunity should be extended to them.
62. Ms.R.Vaigai, in her reply submissions, by relying upon the decision reported in 1898 ILR Mds 21 (Queen-Empress Vs. Subba Naik and Others) submitted that even prior to the coming into force of the Constitution, this Court has taken the view that whomsoever participate in police excess either on their own volition or out of their official necessities, they are compositely responsible and should be punished for their excess.
63. The learned counsel pointed out that the various submissions made on behalf of the police officers only referred to the law and order situation and there was no justifiable ground demonstrated for violation of any public order in order to invoke Chapter X which contains Sections 129 to 136 of the Cr.P.C. warranting lathi charge on the ground of unlawful assembly. In other words, the learned counsel would contend that mere law and order situation cannot be a ground for ordering lathi charge and to justify lathi charge to quell the mob, there should be public tranquility. The learned counsel by referring to the decisions of the Hon*ble Supreme Court reported in AIR 1966 SC 740 (Ram Manohar Lohia Vs. The State of Bihar) and 1970 (3) SCC 746 (Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr) contended that the police completely misdirected themselves in a circumstances where there was admittedly only law and order situation and not public disorder or a situation calling for such action on the ground of safeguarding the sovereignty of the State. According to the learned counsel there was total suppression of truth by the highest functionaries of police and therefore, in order to hold a proper and fair enquiry, suspension of the police officials is imminent. According to her, the claim for ex gratia payment as claimed in W.P.No.3705 of 2009 should be considered by this Court and direct the State to order such payment.
64. This proceedings including the various writ petitions and criminal original petitions filed by the lawyers as well as party-in-persons, which stems from the suo motu writ petition initiated by this Court cannot be strictly called as an adversarial litigation. Nevertheless, having regard to the magnitude of the occurrence that took place on 19.02.2009, there were allegations and counter allegations at the instance of the lawyers on the one side and the police on the other side, which made the present proceeding appear as though it was adversarial in nature. But in our considered opinion, this Court has to make all endeavors to actively steer for a search in order to ascertain the truth in as much as, as against the rival contentions of the parties who appeared before us, this Court is of the view that the issue concerns the prestige/stature of the institution viz., judiciary and the steps to be taken in future to protect the institution from any onslaught and thereby ensure that the confidence reposed in this institution by the public at large is not in any way impaired. Therefore in our view, the whole proceeding is a blend of adversarial and inquisitorial in nature. We say so in as much as the adversarial system places a premium on the individual rights of the accused, whereas the inquisitorial system places the rights of the accused secondary to the search for truth.
65. With this prelude as to the approach to be made in this proceeding, when we examine the various facts placed before us, we find that we are obligated upon to examine the following issues for consideration viz.,
(i) Whether the premises of judicial institutions in particular the High Court campus is comparable to the premises of the Parliament and the regulations providing immunity from any attack from any quarters ?
(ii) What was the root cause for the unsavory incident that took place on 19.02.2009, inside the High Court campus and who was responsible for the ghastly incident to take place on 19.02.2009 ?
(iii) If so, who are the concerned persons to be blamed ?
(iv) If the responsibility can be fixed on any particular individual or officer what is the consequential action to be taken?
(v) Ghastly incident apart, what are the steps to be taken in future to ensure that no such incident recur again ?
(vi) In the event of some one being held responsible for the ghastly incident that took place on 19.02.2009, whether necessary contempt action is called for ?
While examining the various contentions raised by the parties, as far as possible, we are taking into account the pleadings and the documents and other materials placed before us at the instance of the State and the Police Officers.
QUESTION Nos.(i), (ii) and (iii) :-
66. Questions (i), (ii) & (iii) can be examined together. For that purpose, we have before us the affidavit of lawyers and the police officers. The sum and substance of the plea of the lawyers to be briefly stated are that they were on boycott from 29.01.2009, to support the Sri Lankan Tamils (not the LTTE); that as part of their agitation, they went on procession, fasting, etc., that there was an incident on 17.02.2009, inside the Court Hall No.3, in which one Dr.Subramaniam Swamy was manhandled and on whom eggs were thrown; that with reference to the said incident, a case was registered against 15 advocates; that on 19.02.2009, at the instance of those 15 advocates who have been arrayed as accused in a criminal case registered against them, Mr.Karuppan, led them to B-4 Police Station around 2.30 pm; that at their instance a counter case was registered in Crime No.14 of 2009 as against Dr.Subramaniam Swamy under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act; that the Advocate/Accused action who initially wanted to surrender before the police on their own, later, after getting a copy of the FIR in Crime No.14 of 2009, resiled from their stand and were not inclined to surrender and subsequently, took the stand that Dr.Subramaniam Swamy should be arrested first if they were to surrender. Mr.Karuppan expressing his inability to keep up his word, stated to have returned back the FIR copy of Crime No.14 of 2009 and walked away.
67. The VCD placed before the Court by Mr.A.K.Viswanathan, Additional Commissioner of Police, which is marked as CD-R2 reveals that it was around 15.36 hours tense situation mounted near the B-4 police station and it was at that point of time, the armed policemen who were gathered in sufficient number at that spot pushed in some advocates into the police van and after taking into custody of about 15 lawyers, the police van left the campus. Closely thereafter, there was pelting of stones on either side which ended in a lathi charge by the police around 3.40 pm.
68. Thereafter the advocates from two different directions were posing a challenge to the police and the police repeated the lathi charge apart from beating the lawyers in single or in groups. The vehicles parked inside the campus were also damaged by the police personnel. After 4.00 pm it looked as if it was a battleground in as much as the police were seen on a hitting spree as and when groups of advocates were posing a challenge to them from different directions and in that process the police in fact entered the Small Causes Court and the Library Section of the Law Association, Madras High Court Advocate Association and also the annexe building of the High Court. At one point of time such charging policemen were even seen near the Hon'ble Chief Justice Chamber.
69. In the meantime, the Acting Chief Justice who was informed about the lathi charge by the police around 3.40 pm tried to contact the Commissioner of Police in order to remove the police personnel from the campus as the permission of the Court was not obtained by the police in order to either make the arrest or take any other action under the guise of maintaining law and order. Though the Commissioner of Police does not dispute the time of the Hon'ble Acting Chief Justice directing him to meet him in his Chambers and stop the movement of police force inside the campus, took the stand that he was not able to meet the Hon'ble Acting Chief Justice and that he withdrew the police only after 5.00 pm. After withdrawal of the police, B-4 police station was set on fire and some of the properties were also burnt in the said fire which took place between 5.00 to 5.30 pm, when the fire service personnel approached to put down the fire, the same was resisted and once again the police resorted to another lathi charge at 5.35 pm to quell the mob and thereafter the fire in the B-4 Police Station was put down.
70. The Commissioner of Police went to the Chambers of the Hon'ble Acting Chief Justice along with the Chief Secretary, Home Secretary and the Director General of Police. In the Chambers of the Hon'ble Acting Chief Justice, a Full Bench was constituted and an order came to be passed by initiating a suo motu writ proceedings in W.P.No.3335 of 2009. In the said order, after narrating briefly the incident and the havoc caused to the men and material, the Full Bench after hearing the high level officers of the State namely the Chief Secretary, the Home Secretary, the Director General of Police and the Commissioner of Police directed the matter to be entrusted with the CBI as agreed to by the Chief Secretary and the CBI was directed to register a case treating the order passed by the Full Bench as First Information Report.
71. The report of the Registry disclose that in the lathi charge that took place on 19.02.2009, as many as 95 advocates, 20 staff and 24 others were injured, who suffered major as well as minor injuries apart from the damages caused to 64 four wheelers, 67 two wheelers, 3 bicycles including a Judges* van parked inside the premises. Damages were also caused to library books, bookracks and also a TV kept in the Law Association of the Small Causes Court.
72. When we examine the above narration of events and find out as to who ignited the spark, the direct information is available in the affidavit of the jurisdictional Joint Commissioner of Police. In his affidavit dated 07.09.2009, he states that on 19.02.2009, he along with the Additional Commissioner of Police Mr.A.K.Viswanathan arranged for the bandobust in the High Court campus since there was intelligence information that on that date Dr.Subramaniam Swamy who is scheduled to visit the High Court to attend as party-in-person before a Division Bench presided over by the Hon'ble Acting Chief Justice as well as the Court presided over by Hon'ble Mr.Justice S.Manikumar, there was likelihood of an attack on him. According to the jurisdictional Joint Commissioner of Police, Dr.Subramaniam Swamy as scheduled came to the High Court, that the police bandobust was neatly carried out and he also left the High Court campus by around 11.30 am. The Joint Commissioner of Police is stated to have withdrawn the additional police force to B-2 police station and was involved in debriefing the force. At that point of time he would state that Mr.Vijyandran one of the accused in the occurrence that took place on 17.02.2009, in Court Hall No.3 approached him and wanted the list of names of other accused in order to enable them to surrender on their own. The jurisdictional Joint Commissioner of Police would claim that he wanted to make use of the voluntary approach made by that accused and furnished the list of names and to accomplish their surrender, proceeded back to B-4 Police Station located inside the High Court campus along with his force. In fact the approach was stated to have been made by Mr.Vijayendren at about 12 noon. The rest of the incident about the group led by Mr.Karuppan and others was after 2.00 pm.
73. When we examine those facts stated by the jurisdictional Joint Commissioner, we feel that we should also keep in mind what was the stand of the jurisdictional Joint Commissioner of Police as well as the Additional Commissioner of Police on this aspect. In the affidavit of the Additional Commissioner of Police Mr.A.K.Viswanathan, it is stated that he was also assigned the task of bandobust to be provided to Dr.Subramaniam Swamy in the morning session and that after Dr.Subramaniam Swamy left the High Court premises, he also left for his office at Egmore. That around 2.45 pm the Commissioner of Police directed him to proceed to the High Court and oversee the process of surrender of the accused involved in the occurrence dated 17.02.2009. According to Mr.A.K.Viswanathan, he was not in favour of such a move of the surrender offered by the advocates that too in the High Court premises, therefore he expressed his viewpoint that it would not be prudent for the police to accept their offer of surrender at that point of time that too inside the premises as it may ultimately result in very serious consequences. Mr.A.K.Viswanathan also stated in his affidavit that in spite of his viewpoint expressed to the Commissioner of Police, the Commissioner of Police insisted that the process of surrender should be proceeded with and Mr.A.K.Viswanathan should remain in the High Court premises along with the jurisdictional Joint Commissioner. Mr.A.K.Viswanathan would therefore state that the Commissioner of Police being his superior officer, he had to obey his command and therefore he waited for his further directions by remaining at B-2 police station and went inside the High Campus through Esplanade entrance by around 3.45 pm. He would further state that as directed by the Commissioner of Police, the first lathi charge took place around 3.56 pm and the subsequent lathi charge also took place as directed by the Commissioner of Police. The jurisdictional Joint Commissioner of Police would state in his affidavit that after Mr.Karuppan expressed his inability to surrender the accused advocates as promised, the police took into custody 15 persons without ascertaining as to whether they were the real accused in the occurrence that took place on 17.02.2009, that since thereafter, there was a threat to the B-4 police station, the police force continued to remain near the B-4 police station and since the advocates mob went out of control, the jurisdictional Deputy Commissioner of Police Mr.Prem Anand Sinha ordered for lathi charge at around 3.55 pm. He would state that subsequently such lathi charge was repeated at 4.27 pm and it went on till 5.00 pm, when the Commissioner of Police came to the spot and withdrawn the police force to B-2 police station.
74. The Commissioner of Police in his version would state that after receiving the information about the tension that mounted inside the premises, he proceeded to the High Court from his Egmore Office and that he could reach the B-2 Police Station only around 16.03 hours and since he was also attending to the traffic congestion and giving directions to other police personnel in the light of the Assembly Session in progress, he could reach the actual spot of the High Court only by 5.00 pm. Though he would say he was contacted by the Hon'ble Acting Chief Justice who directed him to withdraw the police from the High Court campus, he could not enter the campus itself as the gates were all closed and he could enter only by 5.00 pm through Esplanade gate. He would further state that after he reached the spot, he immediately gave directions to withdraw the police and that the lathi charge was ordered by the Additional Commissioner of Police Mr.A.K.Viswanathan in consultation with other officers viz., the Joint Commissioner of Police, the Deputy Commissioner of Police and others.
75. Apart from the above version about the incident, as far as the necessity for mobilizing additional police force into the campus on 19.02.2009, is concerned, while the Additional Commissioner of Police would state that the same was necessitated initially to provide bandobust to Dr.Subramaniam Swamy, the Commissioner of Police mobilized such additional force at different times, based on his own assessment of the situation.
76. At this juncture, it will also be worthwhile to refer to statutory documents namely the First Information Report (FIR) in Crime No.15 of 2009 dated 19.02.2009. The said FIR was registered at 19.20 hours on 19.02.2009 and the complainant is the Inspector of Police of B-2 Police Station. The date of occurrence has been noted as 19.02.2009 and the duration was stated to be from 14.30 hours to 18.00 hours. As per the said FIR registered with the B-4 police station, the relevant facts that could be gathered are as under:
(a) On 19.02.2009, armed police, commando guards were drawn into the High Court campus along with higher officials and that the complainant was also present on security duty.
(b) At the instance of the lawyers led by Mr.Karuppan, Crime No.14 of 2009 was registered under Section 3(1)(x) of SC/ST Prevention of Atrocity Act read with Section 506 (ii) IPC against Dr.Subramaniam Swamy and Radha Mohan.
(c) After the registration and furnishing of copies of the FIR since the lawyers raised slogans, the police officials caught hold of 4 to 5 lawyers involved in the earlier case and put them in the police vehicle since they refused to surrender apart from using vulgar abuses towards the police.
(d) The lawyers who were assembled there pelted stones, shouted slogans and hurled uncultured and uncivilized abuses and retrieved those lawyers who were put into the police van.
(e) By the stone throwing of the lawyers, the Sub-Inspector of Police, the Inspector of Police and many male and female police personnel were injured and one Police Head Constable fainted.
(f) The lawyers around 150 in number continue to throw stones opposite the B-4 Police Station from a distance and caused damages to two wheelers and four wheelers and the time was around 3.30 pm.
(g) At that point of time, the Deputy Commissioner of Police (Flower Bazaar Range) after giving necessary warning to disperse, directed the police to fire teargas shells to disperse the crowd and that thereafter he also directed the lathi charge since the crowd did not disperse but continue to pelt stones.
(h) Mr.Justice A.C.Arumugaperumal Adityan who came to the spot was injured by a stone pelted by the lawyers and he was put in a separate vehicle and sent to the hospital and the time was 4.30 pm.
(i) At 4.30 pm the Commissioner of Police also came there and directed the policemen and higher officials to return back to B-2 Police Station and that he would inform the Hon*ble Chief Justice of the High Court about the incident. Accordingly all the policemen went near the B-2 Esplanade Police Station.
(j) Thereafter the lawyers who had formed an unlawful assembly set fire to the B-4 Police Station and also to the Government properties namely two four wheelers and five two wheelers parked in front of the B-4 Police Station which were worth about 4 to 5 lakhs. The police therefore entered the High Court premises once again for chasing the lawyers with lathi and also by beating by way of self defence in which some of the lawyers and more than 60 policemen and higher officials sustained bleeding injuries.
(k) Therefore the complainant wanted appropriate action to be taken against Messers Karuppan, Rajanikant, Vijayendran, Pughazhendi and Jeyakumar who were in the forefront of the disturbance as well as the lawyers who accompanied them in the criminal act.
77. The Commissioner of Police filed a report before the Full Bench on 18.03.2009. In the said report, the Commissioner of Police has stated that along with the jurisdictional Joint Commissioner of Police and the jurisdictional Deputy Commissioner of Police, 147 policemen including quick reaction team were mobilized in connection with the visit of Dr.Subramaniam Swamy; that at 11.30 am, Dr.Subramaniam Swamy left the Court premises; that after the police force moved to B-2 Police Station for debriefing; advocates Mr.Vijendran and Mr.Kunaraja approached the officer and asked for the list of accused who were involved in the incident inside the Court Hall on 17.02.2009; that at 2.10 pm Messers Karuppan, Rajnikanth, Vijendran, Pughazhendi and Jayakumar along with large number of advocates went to the B-4 Police Station and insisted for registration of a case against Dr.Subramaniam Swamy as a pre condition for surrender; that at 2.30 pm, he had the information that trouble was brewing, whereupon he sent the Additional Commissioner of Police Mr.A.K.Viswanathan along with the Joint Commissioner of Police (Central) and some other officers with reinforcement of 118 men and officers in all 265 men and officers included special action group which is part of the armed reserve police with special training. He also stated that around 3.45 pm FIR copy was given to the advocates who thereafter insisted for arrest of Dr.Subramaniam Swamy before arresting them. Even Mr.Karrupan*s persuasion did not yield any result. Thereafter, the mob started pelting stones at the police in which some policemen were injured.
78. As per the report 15 advocates were apprehended and sent in a police van to Thousand Lights Police Station. In paragraph 16 of the said report, the Commissioner of Police would say that to protect the life and property of the police personnel, the public and others, the Additional Commissioner of Police who was the senior most officer present at the spot after consulting the other senior officers took a collective decision to declare the assembly as unlawful and disperse it. Based on his directions, the Deputy Commissioner of Police (Flower Bazaar Range) took the measures to disperse the unlawful assembly by using minimum force. This was stated to have taken place at 4.00 pm. He also stated that some additional reinforcement along with Joint Commissioner of Police (South), Deputy Commissioners of Police from Adyar, Anna Nagar, T.Nagar and Mylapore were also rushed in to control the situation and the total strength was 291 men and officers. He would further state that he was directed by the Hon*ble Acting Chief Justice to withdraw the police and that he entered the High Court Police Station at around 5.00 pm and also went around the High Court campus to assess the situation and get first hand information as to what happened in the High Court campus. According to him, at around 5.30 pm the entire strength was withdrawn from the High Court premises to B-2 Esplanade Police Station.
79. The Commissioner of Police in paragraph 19 of the said report would state that around 5.35 pm as the B-4 Police Station was set on fire and the fire brigade was not allowed to put down the fire, as Commissioner of Police cum Additional District Magistrate and after consulting all the senior officers present on the spot, he took the collective decision to disperse the unlawful assembly and after the fire was put down, he withdrew the police force to the Esplanade Police Station.
80. He stated that he reached the Chambers of the Hon*ble Acting Chief Justice at 6.40 pm along with the Director General of Police, Home Secretary and the Chief Secretary. According to him in the clash 120 police personnel including fire service personnel, one Hon*ble Judge, 77 advocates, 10 Court staff, 4 press persons, 3 law students and 7 others were injured. Along with the report, the Commissioner of Police also produced the manpower chart showing the presence of police strength in B-4 Police Station area on 19.02.2009, drawn at different times. He also produced the list of police officers present in the High Court between 3.00 pm and 5.00 pm.
81. The Commissioner of Police addressed a letter to the Registrar General of this Court on 17.02.2009, wherein, he after referring to the assault by a group of unruly advocates on Dr.Subramaniam Swamy and other police personnel with eggs and hands inside the Court Hall, sought for the concurrence of the Registrar General to register a criminal case and set the criminal law in motion, since the incident happened inside the High Court premises. In the said letter itself he has referred to a complaint already made by the Assistant Commissioner of Police, High Court range.
82. The Registrar General sent a reply dated 18.02.2009, stating as under:
*I am to state that under law, the concurrence of the Registry is required to register a criminal case but police should do it on its own, in view of the fact that already a complaint is preferred by Mr.M.P.R.Kader Mohideen, Asst. Commissioner of Police, High Court Range with the High Court Police Station.*
There seems to be a typing mistake in the second sentence were the word *not* after the expression *concurrence of the Registry is (not) required* seems to have been omitted to be typed.
83. Therefore while the Commissioner of Police wanted the concurrence to register a criminal case, the Registrar General made it clear that the police should register the criminal case on its own.
84. Keeping the above facts in mind when we find the answer for Question No.(ii), at the outset, we are of the view that the whole ghastly incident could have been avoided if the police personnel headed by the Commissioner of Police had applied their prudence after thoroughly analysing the various factors past as well as the present that happened upto that date. The conduct of the police personnel in having provided necessary bandobust in the light of appearance of Dr.Subramaniam Swamy in two different matters in the High Court on 19.02.2009, cannot be faulted.
85. It cannot be disputed that there was a high level of threat perception to Dr.Subramaniam Swamy and therefore it was the duty of the State police to ensure that no harm was caused to him at the time of his visit to the High Court premises in connection with certain litigations in which he was involved. In fact having regard to the high level bandobust arranged, Dr.Subramaniam Swamy could transact his business and leave the Court campus at 11.30 am without any hindrance. After he left, the jurisdictional Joint Commissioner of Police also withdrew the extra police force drawn for that purpose to B-2 Police Station for debriefing.
86. The whole trouble started when two advocates by name Mr.Vijendran and Mr.Kunaraja approached the Joint Commissioner of Police and stated that 15 advocates who were involved in the incident on 17.02.2009, inside the 3rd Court Hall wanted to surrender. Though the Commissioner of Police in his letter dated 17.02.2009, stated that since the incident on 17.02.2009, happened inside the High Court premises, he needed the concurrence of the Registry even to register a criminal case in order to set the criminal law in motion, we wonder how having regard to the background of the accused involved in the said incident dated 17.02.2009, any prudent officer at the level of the Commissioner of Police could have been lured by the offer of voluntary surrender and that too in a smooth manner making it so very easy for the police personnel to take them into custody. Moreover, after the boycott which commenced on 29.01.2009, the advocates started attending Courts only from 19.02.2009. In fact during the course of the boycott between 29.01.2009 and 18.02.2009, there were number of incidents which had taken place outside the Court campus in which a Cycle shop in Broadway was looted, a Transport Corporation vehicle was hijacked and when some advocates were arrested, hue and cry was made relating to their remand. In all those cases, some of the accused amongst the 15 advocates who were involved in the incident dated 17.02.2009, were also arrayed as accused.
87. The Commissioner of Police himself in his affidavits dated 07.09.2009, 09.09.2009, 18.09.2009 and the report dated 18.03.2009, has descriptively stated the various alleged activities of group of lawyers which caused concern. In such a situation as the head of the police force of the city of Chennai when one of his immediate subordinate officers namely Additional Commissioner of Police is stated to have suggested to him as has been stated in his affidavit dated 27.08.2009, that it was not prudent to arrest the advocates in the High Court Police Station as it would create problems, it was quite strange that the Commissioner of Police ignored such a notable advice of an officer no less than in the position of Additional Commissioner of Police and proceed to state that when the advocates wanted to surrender, such surrender should be allowed to take place by mobilizing the police strength to 291 which included special task force and armed police personnel. There is no reason why the statement of the Additional Commissioner of Police that it is not advisable to attempt the process of surrender inside the High Court premises should not be accepted as true.
88. It is not the case of the Commissioner of Police that the Additional Commissioner of Police had an axe to grind and that he wanted to let down the Commissioner of Police by spinning such a story. In fact when the Commissioner of Police directed him around 14.45 hours to proceed to Esplanade Police Station and monitor the surrender of advocates in the High Court police station, he immediately proceeded to the Esplanade Police Station and thereafter went to B-4 Police Station situated inside the High Court campus. The point for consideration is that when at least one of the high level officers could visualize the magnitude of the problem that may crop up while allowing the surrender to take place on the date when the advocates have withdrawn the boycott and the advocates started attending the Court proceedings in full strength, the Commissioner of Police could have ignored his view point. The claim of the Additional Commissioner of Police that he did advise the Commissioner of Police not to go ahead with the surrender by the advocates inside the High Court premises in the background of the situation that was prevailing prior to 19.02.2009, would have been the proper advice of any normal thinking person and more so in the case of a high ranking police officer at the level of Additional Commissioner of Police. In the counter affidavit filed by the Commissioner of Police himself dated 09.09.2009, no where he has alleged any sort of animosity or any difference of opinion that existed between him and the Additional Commissioner of Police in order to state that with a view to wreck vengeance on the Commissioner of Police, the Additional Commissioner of Police came forward with such a version in his affidavit in order to shirk his responsibilities and that such a suggestion never emanated from him on the fateful day.
89. A perusal of the affidavit of the Additional Commissioner of Police Mr.A.K.Viswanathan dated 27.08.2009, discloses that though he told the Commissioner of Police that after the arrest of the 15 advocates and taken to the Thousand Lights Police Station, it would atleast then be prudent to withdraw the entire police force from the High Court premises, the Commissioner of Police is stated to have insisted that the entire force should remain in the premises and protect the B-4 Police Station. In paragraph 11 of the said affidavit, he has stated that apart from him, the jurisdictional Joint Commissioner of Police and the Central Zone Joint Commissioner of Police also wanted to withdraw all the police from the High Court campus but at the insistence of the Commissioner of Police, the entire force had to remain inside the High Court campus. He would further state that by around 16.00 hours, the Commissioner of Police reached the Esplanade Police Station and since the trouble was mounting in the High Court premises, the police force were chasing the advocates and therefore he contacted the Commissioner of Police for withdrawing the force to which also he did not agree on the ground that the police station should be protected.
90. According to him the Commissioner of Police came inside the High Court premises with additional force numbering more than 100 and thereafter as per his orders teargas was fired for the first time at about 16.45 hours followed by a lathi charge. He would then state that only at about 17.15 hours, the Commissioner of Police ordered for withdrawal of the police force near the fire station, which is also inside the High Court campus and thereafter at about 17.45 hours, the High Court Police Station was set on fire. The Commissioner of Police stated to have ordered fresh lathi charge again at that point of time. The Additional Commissioner of Police therefore stated that the Commissioner of Police was commanding the entire operation inside the High Court premises on 19.02.2009.
91. A counter affidavit was filed by the Commissioner of Police on 09.09.2009 to the affidavit of Mr.A.K.Viswanathan. In the said affidavit, the Commissioner of Police was only attempting to throw the entire blame on the Additional Commissioner of Police Mr.A.K.Viswanathan. As far as the police presence upto the stage when Dr.Subramaniam Swamy left the High Court premises is concerned, there is no contradiction. The Commissioner of Police however deny the statement of Mr.A.K.Viswanathan that he was contacted at 1.00 pm or that he voiced his concern about the process of arrest of those advocates who wanted to surrender. The Commissioner of Police however confirmed that at about 14.15 hours when he was informed about the arrival of advocates to surrender at B-4 police station, he directed Mr.A.K.Viswanathan to proceed to B-4 Police Station to monitor the surrender. He was also stated to have subsequently instructed Mr.A.K.Viswanathan at about 14.45 hours to ensure peaceful surrender of advocates on account of their new demand of arrest of Dr.Subramaniam Swamy as a precondition. The Commissioner of Police therefore would state that Mr.A.K.Viswanathan as Additional Commissioner of Police was in command from 15.30 hours onwards when the pressure mounted inside the High Court premises at B-4 Police Station which led to lathi charge around 16.00 hours. According to the Commissioner of Police when the accused advocates who were to be arrested by virtue of registration of a criminal case in Crime No.13 of 2009, for the eggs thrown and assault incident that took place on 17.02.2009, it was well within the powers of the jurisdictional Joint Commissioner of Police to accept the offer of surrender of advocates and therefore there was nothing wrong in the police force remaining inside the High Court campus and ensure their arrest.
92. When the above sequence of events narrated by the Commissioner of Police and the Additional Commissioner of Police as well as that of the jurisdictional Joint Commissioner of Police are analyzed, it is clear that while the Additional Commissioner of Police would contend that the acceptance of surrender of advocates and their arrest inside the High Court campus was not a prudent step and that keeping the police force in large numbers in pursuance of such arrest was also an imprudent act, the tone and tenor of the stand of the Commissioner of Police in the various affidavits sworn to by him does not reflect such a thinking. On the other hand the firm stand of the Commissioner of Police right through was what come may being an accused in a crime, when the accused advocates came forward to surrender on their own, irrespective of other consequence that may erupt in the High Court campus, the police should proceed with its determination to accept their offer of surrender and nobody can find fault with such a step.
93. It is quite amazing to hear such a stand of the Commissioner of Police whom according to the learned senior counsel Dr.Rajeev Dhavan is a recipient of a gold medal in his service and that he is presently doing his Doctorate in one of the subjects connected with police administration. If an immediate subordinate officer at the level of Additional Commissioner of Police could think in a prudent way not to entertain the surrender offered by the advocates which in his opinion was a design to create a problem inside the High Court premises, we are at a loss to understand how a police officer of such a calibre as that of the Commissioner of Police was not able to realize the game plan and succumb to such a move, which had resulted in a very costly havoc and has made an indelible black mark in the history of Judiciary which can never be condoned irrespective of as to whomsoever or at whose instance such a situation came to be created. It cannot be said that an officer at the level of a Commissioner of Police could not have visualized or anticipated a situation of the magnitude to which the issue would have blown up when somebody offered to surrender themselves against whom there were cases pending for serious offences of even Section 307 IPC right from the year 2001 onwards. In fact in the documents filed at the instance of the police as found in Respondent Volume II at pages 167 to 259, the various criminal cases registered with different police station between the years 2001 to 2009, where all cases in which the accused were advocates. The said statement discloses that there were 13 cases against Mr.Vijendran, 7 cases against Pughazhendi, 7 cases against Mr.R.Karuppan, 5 cases against Sengodi and 17 cases against Mr.Rajani S/o Vijayakumar. Of those cases there were cases in which charges were leveled under Sections 147, 323, 506 (ii) and even 307 IPC. When such overwhelming documents disclose the pending criminal cases against some of the accused of 17.02.2009 incident, it is strange that the Commissioner of Police could not even visualize or anticipate any grave consequence while accepting the offer of surrender by accused advocates at B-4 police station. We are convinced that the Additional Commissioner of Police Mr.A.K.Viswanathan's stand that he advised the Commissioner of Police not to entertain the surrender inside the High Court Police Station would have been true and we have to state that at least such an advice of his immediate junior officer should have prompted the Commissioner of Police not to venture any attempt to accede to the offer of surrender by the accused themselves in the campus of a premier institution of the State namely the High Court. It was very unfortunate that the Commissioner of Police, who is stated to be of a very high calibre to have taken such a foolhardy (recklessly harsh) step and thereby brought (with utmost hesitation to state) a lifelong shame to a prestigious institution namely the High Court and the JUDICIARY, which is the last resort for any common man to seek justice.
94. The Commissioner of Police relied upon the letter of the Registrar General dated 18.02.2009, to contend that the police was given a free hand to deal with the accused involved in the occurrence inside the 3rd Court Hall on 17.02.2009. In fact what all the Registrar General has communicated to the Commissioner of Police in the said letter was that the concurrence of the Registry was not required to register a criminal case but the police should act on its own, in as much as, a complaint has already been preferred. The Registrar General on behalf of the High Court never gave a free hand to the Commissioner of Police to behave in the manner in which he allowed his men to ransack the whole premises and to state that he was only carrying out his duties as a police officer in the matter of arrest of certain accused who came forward to surrender which opportunity the police wanted to grab, taking the letter of the Registry as a licence to indulge in such an unpardonable exercise which has brought a grave disrepute to an institution which has nurtured its reputation for over more than one and half century.
95. Considering the status and position held by the Commissioner of Police as head of the police institution of the city of Chennai, we are not impressed with the stand taken by him that though he was duly informed of the offer of certain accused to surrender who are advocates and who were involved in a nasty incident which occurred on 17.02.2009, inside the High Court premises but yet he did not bother to handle the issue directly by making himself available on the spot and without due consultation with the Registry of this Court.
96. Going by the statement of the jurisdiction Joint Commissioner of Police, by around 12.00 noon, the offer of surrender came to be made by two of the accused advocates. If really the Commissioner of Police had real concern any one would expect him to rush to the spot at the earliest point of time and deal with the issue directly without giving scope for anybody else to mishandle it and thereby not only bringing disrepute to his institution but also allow the course of action to result in an unsavory situation on a premier Institution viz., the HIGH COURT and making an indelible mark of disrespect for an indefinite period to come.
97. In the various affidavits the Commissioner of Police himself has made it clear that he was cautious enough to draw more force apart from stating that there is a customary practice for the force to allow for wait and watch period including debriefing. It is quite apparent that the Commissioner of Police was alive to the gravity of the issue and the attempt of the accused advocates in offering themselves to surrender but yet he would state as though the situation could be dealt with as if it were like any other normal situation where any accused would have offered to surrender themselves. It is very hard to believe such a stand taken by the Commissioner of Police whose calibre, the learned senior counsel would boast upon having regard to his bright career growth all along. Moreover the stand of the Commissioner of Police in stating that instead of reacting to the offer of surrender by making himself present on the spot and deal with it directly, by his own conduct he has shown that he wanted the jurisdictional Joint Commissioner of Police, Additional Commissioner of Police and the jurisdictional Deputy Commissioner of Police to handle along with all other officers numbering not less than 16, among whom there were two Additional Commissioner of Police, three Joint Commissioner of Police, 8 Deputy Commissioner of Police and two Additional Deputy Commissioner of Police, who were drawn into the High Court campus and to remain present between 3.00 pm to 5.00 pm and as Commissioner of Police wanted to control the situation by remote control. The Commissioner of Police himself has furnished the above particulars along with his report dated 18.03.2009, wherein according to his own statement at 9.00 am 147 policemen were brought in, which force was reinforced with another 118 policemen at 2.30 pm and a further reinforcement of officers and personnel to the tune of 26 was added at around 4.50 pm. Therefore as between 3.00 pm to 5.30 pm as many as 292 police personnel consisting of officers and policemen were drawn apart from 130 personnel who were available on duty attached with B-4 Police Station, in all an unusual strength of 421 policemen were drawn into the High Court campus solely at the instance of the Commissioner of Police but yet he would state that he left his office at Egmore at 3.52 pm, which enabled him to reach the B-4 Police Station only at 5.00 pm.
98. Further in the affidavit dated 07.09.2009, in paragraph 24, the Commissioner of Police has referred to seven instances which according to him were pressing issues that constrained the police personnel and the officers to remain in the High Court premises. The said issues were:
(a) The incident that took place on 04.02.2009, with arrest of some advocates resulted in group of other advocates preventing the police from discharging their duty.
(b) The advocates choose to surrender when the High Court campus was buzzing with activities and the police could ill afford another violent attack by advocates in or around the High Court campus as the threat to the lives of huge number of other people.
(c) The advocates who had attacked an Assistant Commissioner of Police and Dr.Subramaniam Swamy inside the 3rd Court Hall would not hesitate to indulge in violence though they were inside the High Court campus.
(d) Some of those advocates had already assaulted the Inspector of Police, B-4 Police Station by hitting his leg with an iron door.
(e) The advocates had already damaged a Door Frame Metal Detector erected in the High Court premises as a security measure and therefore they would not hesitate to damage any other public property and it was essential to ensure that the heritage structure of the High Court remains unscathed.
(f) The advocates who offered to surrender included persons who had several criminal cases pending against them for grave criminal offences such as rioting with deadly weapons, attempt to murder, criminal intimidation, causing hurt, wrongful restraint, assault on public servant discharging his duty, negligent conduct with respect to fire and destruction of public property and therefore the police could not afford similar violent conduct inside the High Court campus.
99. Though everyone of the above instances stated by the Commissioner of Police and his perception in that background cannot be belittled, it is unfortunate that instead of taking a decision which would have enabled the police to achieve the objective he proceeded to take, the decision which totally destroyed the purpose sought to be achieved was taken and implemented to its full extent. Moreover, it was not as if that consequence which had ultimately resulted due to the lathi charge could not have been anticipated at all. On the other hand, at least two of the officers namely the Additional Commissioner of Police and the Joint Commissioner of Police (Central) stated to have felt that it was not prudent to accede to the request for surrender inside the High Court campus as that would create lot of complications. At least one amongst them namely the Additional Commissioner of Police, Mr.A.K.Viswanathan has stated in more than one place in his affidavit that he did caution the Commissioner of Police about the imprudent step being taken by accepting the offer of surrender and proceed with the arrest which advice was thrown to the winds by the Commissioner of Police for reasons best known to him.
100. It was a pity that while according to the Commissioner of Police the threat was to the lives of huge number of people and the High Court was bustling with activities since the advocates started attending Courts after withdrawing the boycott on 19.02.2009, instead of allowing such activities to remain without any disturbance, the act of the police themselves in having chosen to allow the process of surrender of accused to take place in a more vulnerable situation that too by gathering nearly 421 policemen, the Commissioner of Police has miserably failed in his responsibilities and duty to protect the interest of public and instead made himself responsible for the most imprudent act of creating a situation of lawlessness which ultimately resulted in very ghastly incident to take place inside the High Court premises and thereby creating a blot on the institution namely the Judiciary. We therefore hold that the root cause for the unsavoury incident that took place on 19.02.2009, was the promptitude of the accused Advocates led by Mr.R.Karuppan who offered to surrender themselves. We further hold that by the imprudent act of the police in having encouraged the offer of surrender to take place insider the High Court campus, the high level police officers, namely, the Commissioner of Police, the Additional Commissioner of Police, the jurisdictional Joint Commissioner of Police and the jurisdiction Deputy Commissioner of Police, sowed the seed for the ghastly incident. As far as Question No.(i) is concerned, though as claimed by Ms.R.Vaigai that the Judiciary is also entitled for the extent of immunity i.e. Available to the Parliament cannot be accepted, in the same breath, it will have to be stated that Judiciary as a constitutional machinery is entitled for higher amount of protection and safety and therefore the other wings of the State have to display utmost restraint while carrying out their operations inside the premises of the institution. Consequently when such other institution like police or executive want to deal with the said institution, they are bound to get necessary instructions and if necessary permission for carrying out any of their activities which would otherwise cause prejudice to the institution. We answer the Question Nos.(i), (ii) & (iii) as above. We however hold that the allegation of the lawyers that there was a conspiracy under the brand name of "Operation Black Coat" is not made out.
QUESTION No.(iv) :-
101. It will have to be made clear that while deliberating on this issue, this Court is not really concerned with the grievance of any particular class of people. As rightly pointed out by Ms.R.Vaigai, learned counsel representing the lawyers, the onslaught on 19.02.2009, was on the institution namely the 'JUDICIARY' irrespective of whatever grievance that existed between the police on the one side and the lawyers on the other side.
102. When we examine the aftermath of the incident, the report of the Registrar General discloses that due to the incident that occurred on 19.02.2009, the Court proceedings after 4.00 pm was disrupted and heavy debris including glass pieces found strewn all over which had to be cleaned to ensure public safety. The damaged vehicles were lying in a haphazard manner. The High Court and the Subordinate Courts in the campus remained closed on 20.02.2009 and thereafter on 23.02.2009 and 24.02.2009 and all the Courts in the State commenced functioning only from 25.02.2009. The City Civil Court and the Court of Small Causes and the other Courts located in those buildings started functioning only from 02.03.2009. Remand orders were passed by the respective Judicial Magistrates by visiting the prisons as the police refused to enter the Court premises. The inspection carried out by the Committee and the Sub-Committee constituted by the Full Bench revealed damages to 131 vehicles and 139 persons most of whom were lawyers had suffered injuries. The damages caused to the High Court building, City Civil Court building and Court of Small Causes building is stated to be in the order of Rs.6,39,460/-. The injured persons were disbursed with a sum of Rs.20,92,768/- towards medical expenses and compensation apart from a sum of Rs.10,79,497/- and Rs.1,18,330/- paid to M/s Appolo Hospital and Life Line Hospital. A sum of Rs.10,60,333/- was stated to have been disbursed to the owners of 55 four wheelers and 63 two wheelers and three bicycles.
103. It can be stated with authority that in the history of judicial functioning, such a disruption of Court proceedings to the magnitude to which it had taken place consequent to the ghastly incident that happened on 19.02.2009, had not occured. The factum of non-functioning of the whole of judicial institutions throughout the State for at least three days only mean that the judiciary was paralyzed and was made immobile for no fault of it. Due to the non-functioning of the judicial forum and thereby depriving of any common man to have access to the judicial institutions for redressal of his grievance, to be stated in the most humble manner was that the judiciary impliedly expressed its helplessness to extend its helping hand to any one who was really in need of judicial intervention seeking justice. Therefore, when the consequence that resulted by virtue of the occurrence that took place on 19.02.2009 is examined, there can be no two opinion that whomsoever was responsible for creating such a situation cannot be dealt with lightly or any leniency can be shown to such person/persons as otherwise it would only give a wrong signal that one can carryout any unsavoury operation of very high magnitude unmindful of the consequences and can get away with it by shifting the responsibility on others or by referring to very many circumstances as the cause for such ghastly incident.
104. The highest judicial forum of this State in whose premises such a ghastly incident was allowed to take place cannot be lightly ignored or dealt with, as it will not be in the interest of public at large to allow any one who dealt with the INSTITUTION in such a light hearted manner. In our considered opinion, unless very drastic and deterrent action is taken on the persons responsible for the occurrence that took place on 19.02.2009, the public faith on the institution would be totally eroded and if the institution fails to deal with such persons firmly or fails to deal with them in the appropriate manner, it would completely shake the confidence of the common man who seek reccour for all their other grievances in the normal day to day life.
105. In the above stated background, we are constrained to state that this Court has no hesitation to hold that the Commissioner of Police Mr.K.Radhakrishnan, is primarily responsible while the responsibility of other high ranking officers namely the Additional Commissioner of Police Mr.A.K.Viswanathan, the jurisdictional Joint Commissioner of Police Mr.M.Ramasubramni and the jurisdictional Deputy Commissioner of Police Mr.Prem Anand Sinha were all equally culpable for the gory incident which gripped the High Court premises on 19.02.2009, at least between 12.00 noon and around 6.30 pm, as well as on the subsequent dates namely when the High Court did not function on 20.02.2009, 23.02.2009 and 24.02.2009 and when the Subordinate Courts inside the High Court campus did not function on 20.02.2009 and 23.02.2009 to 27.02.2009.
106. As far as the Additional Commissioner of Police Mr.A.K.Viswanathan is concerned, though we are inclined to agree with his stand that he did advise the Commissioner of Police not to accept the surrendering process offered by the accused advocates, as that would create a serious complication, as rightly pointed out by the Commissioner of Police in his counter affidavit, there was no reason why he failed to stop that imprudent move to take place. In the counter affidavit of the Commissioner of Police dated 09.09.2009, which he filed in response to the affidavit of Mr.A.K.Viswanathan dated 27.08.2009, in paragraph 9 the Commissioner of Police has stated as under
*9. I submit that the assertion at para-10 that Mr.A.K.Viswanathan called me over the phone and suggested that it was *prudent* to withdraw the force and that I insisted that the force remain, is incorrect. No such telephonic conservation took place. As he was the highest ranking officer of the rank of Inspector General of Police and the Chief Operating Officer of the law and order machinery (that it why he is designated as Additional Commissioner of Police, Law & Order), present in the spot he could have withdrawn the force, if he had thought that it was prudent to withdraw. Withdrawal of a force from a serious law and order situation is a tactical decision which can be taken only by an officer present in the spot and handling the situation and no other officer, however great he may be, sitting at a different place cannot give orders through remote control. He needed no direction from anybody, as he was the best judge in the actual field witnessing the events personally. His further assertion at para 11 that the other officers present also wanted to withdraw the force within the premises is, as far as I know, not correct. Further at no point of time neither Mr.A.K.Viswanathan nor any other officer had expressed any desire for the force to withdraw, which they themselves were competent to do so as being senior supervisory officers present on the spot witnessing the events and were hence the best judges of police action to be taken as of on that day.* (Emphasis added)
107. We fully concur with the stand of the Commissioner of Police on the lines stated above as regards the power of the Additional Commissioner of Police who was the next highest level officer who was actually monitoring the whole operation inside the High Court premises. He cannot he heard to say that when the Commissioner of Police was the highest authority and as a less higher authority he can remain as a silent spectator when the ghastly incident was taking place which could have been controlled and that fearing the command of the highest officer, he allowed the ghastly incident to develop on the ground that he is merely a subordinate to the Commissioner of Police. Such a stand at the instance of the Additional Commissioner of Police can never be expected of or accepted for mere statement. We can only call such a stand of the Additional Commissioner of Police as a feeble attempt to shirk his responsibility reposed in him as an officer at the level of Additional Commissioner of Police. We are not therefore inclined to accept the stand of the Additional Commissioner of Police in trying to throw the entire blame on the Commissioner of Police and thereby escape from his responsibilities. Therefore, we have no hesitation to hold that he is also equally responsible along with the Commissioner of Police.
108. Ms.Vaigai, the learned counsel representing the lawyers referred to a decision reported in 1898 ILR (Mad) 21 (Queen-Empress Vs. Subba Naik and Others). That was a judgment of pre-independence period. However, we find the ratio of the said decision applicable for all times to come. That was a case where there was a dispute between two co-widows about the enjoyment of certain field. Two of the witnesses along with their coolies went to the field in question and started harvesting the crops on behalf of the junior widow stated to have been sown by the senior widow. After harvesting of the crops started, the prisoners who were Station House Officer and constables and a private watcher appeared on the scene armed with guns. The first prisoner ordered the reapers to desist, which was resisted. The coolies however continued with the harvesting operation. Thereafter, at the instance of the first prisoner one of the constables fired in the air. Some of the coolies ran away while the rest of the coolies continued with the harvesting operation. There was a second order for shoot by the first prisoner, which was obeyed by the second prisoner and one Sankaralingam was mortally wounded. The other prisoner knocked down one of the witnesses with stick and stabbed him with a weapon and injuries were however not serious. Prosecution case was that the deceased attempted to persuade the coolies not to stop the harvesting which was the reason for the second prisoner to shoot him. In the above stated background the Court held as under at page 251 :
*We are of the opinion that the accused police officers cannot shield themselves on the plea that they were acting in good faith, for nothing is said to be done in good faith which is one without due care and attention, and we are of the opinion that neither the first nor the second accused believed that it was necessary for the public security to disperse such an assembly by firing on them.*
The Court went on to state again:
*The decree of force which may be lawfully used in the suppression of an unlawful assembly depends on the nature of such assembly, for the force used must always be moderated and proportioned to the circumstances of the case and to the end to be obtained. (Lord Bowen*s Report on the Colliers* Strikes and Riot, --1893.)*
Ultimately the Court held:
*We are of the opinion that the second accused is not protected in that he obeyed the orders of his superior officer. The command of the head constable cannot of itself justify his subordinate in firing if the command was illegal, for he and the head constable had the same opportunity of observing what the danger was, and judging what action the necessities of the case required. We are of opinion that the order the second accused obeyed was manifestly illegal, and the second accused must suffer the consequence of his illegal act*..* (Emphasis added)
109. When we come to the role played by the jurisdictional Joint Commissioner of Police Mr.M.Ramasubramani, who is also an IPS officer and who was really responsible for the root cause for the incident to get triggered of at 12.00 noon and to its ultimate conclusion around 6.30 pm. He was on the spot right from 9.00 am onwards. It was he to whom the two advocates of whom one had already been arrayed as accused in the 17.02.2009, incident namely Mr.Vijendran approached and expressed the desire of 15 accused advocates to surrender and he wanted the names of all of them. It is really not understandable how an IPS officer of his experience was not able to assess the real situation, who has been working in the field and to state that he discussed with the advocates and furnished the list and then instead of proceeding with the debriefing at B-2 Police Station took the entire force into the High Court campus i.e. to the B-4 Police Station and indulged in heated dialogue with the accused advocates who approached under the leadership of Mr.R.Karuppan. At least when the situation was taking a different shape, namely that while in the beginning, the representation of the accused advocates were that they wanted to merely surrender, at the B-4 Police Station they shifted their stand by insisting for registration of a criminal case as against Dr.Subramaniam Swamy, it is quite strange that the jurisdictional Joint Commissioner did not even think that the situation was slipping out of his control and having regard to the vulnerable atmosphere in which the whole incident was taking place, prudence demanded a different step and avoid any clash inside the premises. Instead, a perusal of his affidavit discloses that according to him had he abstained from arresting the surrendering advocates, he would not only be accused of dereliction of duty but would have invited criticism from all quarters. Such a statement has been made in the affidavit after stating in unambiguous terms that tension was brewing and that oral abuses were being made against the police. When ultimately at the end, the jurisdictional Deputy Commissioner of Police Mr.Prem Anand Sinha declared the assembly as unlawful and ordered a lathi charge. At least in paragraph 20 of the affidavit the Joint Commissioner of Police would state that he was endeavoring to place before this Court the totality of the events which was brought about by a minuscule group of advocates whom the peace loving majority advocates failed to contain. It is also stated that he was also aware of the names of all the advocates who threw stones at the police and kept on provoking the police with obscene words and gestures, but he was not inclined to disclose their names in order to save them from embarrassment.
110. Such a statement of the jurisdictional Joint Commissioner of Police makes a poor reading of his application of his sense of discretion while handling a situation, which was not conducive to contain. In paragraph 25 of his affidavit dated 07.09.2009, he would state that the act of lathi charge held on 19.02.2009, cannot be examined minutely in order to find out its justification or otherwise and that for the excesses committed by individual policemen, he cannot be vicariously held liable and that such individuals can be proceeded against in accordance with law.
111. Again in paragraph 28, he would categorically state that being a subordinate officer to the Additional Commissioner of Police and Commissioner of Police in the Chennai City Police hierarchy and in the presence of senior officers, he was not in a position to take a decision on his own. As in the case of the Additional Commissioner of Police, the jurisdictional Joint Commissioner of Police was also attempting to wriggle out of the situation in which he is placed.
112. As stated by us earlier, first and foremost, as jurisdictional Joint Commissioner of Police, he should have the courage to own his responsibility for whatever that happened on 19.02.2009. His stand that he was subordinate to the Additional Commissioner of Police and Commissioner of Police cannot be accepted, in as much as, being an IPS officer and at the level of Joint Commissioner of Police, it was never expected of an officer of his level to make any attempt to get rid of the situation by attempting to throw the responsibility on his higher authorities. Like that of the Additional Commissioner of Police, as Joint Commissioner of Police of the concerned jurisdiction, it was his responsibility to have appraised the Commissioner of Police and insisted for not proceeding with the arrest and avoided any mishap from taking place inside the High Court premises. The sensitivity of which premises was very well known to him as could be seen from his own assessment of the nature of activities being carried on. Therefore it is too late in the day for the jurisdiction Joint Commissioner of Police Mr.M.Ramasubramani to merely come forward with an offer of apology in order to relieve him of his responsibility. Having regard to the magnitude of the havoc caused which we have elaborately stated in the previous paragraphs and the onerous responsibilities reposed in the said officer as jurisdictional Joint Commissioner of Police, we hold that he was also equally responsible for the occurrence that took place on 19.02.2009, as well as the subsequent events which immobilized the functioning of the Courts both in the High Court and the Subordinate Courts.
113. As far as the jurisdiction Deputy Commissioner of Police Mr.Prem Anand Sinha is concerned, he is also an IPS officer like that of the jurisdiction Joint Commissioner of Police. He was also present and was participating in the occurrence right from the beginning till its end. In fact the Commissioner of Police, the Additional Commissioner of Police and the Joint Commissioner of Police have stated in unambiguous terms that it was he who declared the mob as unlawful assembly and also ordered for lathi charge. When according to the Commissioner of Police, Additional Commissioner of Police and jurisdictional Joint Commissioner of Police, his decision to declare the mob as unlawful assembly was left with him, as a responsible IPS officer he ought to have taken the decision on his own instead of meekly surrendering his powers and jurisdiction to his higher authorities and by ordering a lathi charge. Being an IPS officer who occupy a very high status in the police force and before being actually assigned with any field work are imparted with intensive training for considerable years, the jurisdictional Deputy Commissioner of Police ought to have assessed the situation, the place, the consequence that would arise, the historical background of the parties who were involved in the offence while taking a decision. Though he may be 4th in rank in the hierarchy, after the Commissioner of Police, Additional Commissioner of Police and jurisdictional Joint Commissioner of Police, he being a police officer belonging to the All India Service, he should not have ventured to indulge in an act which would bring grave disrepute to a constitutional machinery which was not in the interest of the public at large. One cannot expect an IPS officer in the level of a Deputy Commissioner of Police to take the stand that there was a group discussion amongst them and ultimately as jurisdictional Deputy Commissioner of Police, he declared the mob as unlawful assembly and ordered for consequential lathi charge.
114. Therefore we hold that the said officer is also equally responsible in the same proportion like that of the other officers namely the Commissioner of Police, Additional Commissioner of Police and the jurisdictional Joint Commissioner of Police for the unsavory incident that happened on 19.02.2009, as well as for the subsequent consequences which paralyzed the functioning of the judiciary through out the State.
115. While holding so, we also wish to state that even while invoking the power relating to unlawful assembly as prescribed under Chapter X of the Code of Criminal Procedure, the various prescriptions contained in the said provisions have been completely thrown overboard. Section 129(1) falling under the said Chapter makes it clear that any Executive Magistrate or officer in charge of a police station or, in the absence of such officer in charge, any police officer, not below the rank of a Sub-Inspector, can disperse the unlawful assembly which is likely to cause a disturbance of the public peace. Sub-Section (2) to Section 129 states that for the purpose of dispersing such assembly one can even resort to arrest or confine the persons who form part of the unlawful assembly or by use of force. Under Section 129, the use of armed force is not provided for. Therefore, as the first step, the use of such force can by no means be by way of lathi charge. Without the aid of any armed force only the officer should attempt to disperse any such assembly. Since arrest of unruly mob is part of Section 129(2), an attempt should have been made to identify such key persons who are indulging in any unlawful assembly and make an attempt to arrest them without resorting to any other measure. The paramount purpose is to prevent anybody*s attempt to disturb public peace. Therefore mere law and order cannot be a situation for invoking the provisions contained under Chapter X.
116. Use of armed force can be resorted to only by invoking Section 130 of the said Chapter. Here again, Section 130(1) makes it clear that only if such assembly cannot be otherwise dispersed and when it is necessary for the public security that it should be dispersed and the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces. Therefore, a reading of Sections 129 and 130(1) together makes it crystal clear that dispersement of any unlawful assembly should be resorted to without any scope for any untoward incident taking place. It must be stated that when any such group of persons assemble and thereby providing scope for declaring it as an unlawful assembly, the whole endeavor of the Executive Magistrate or any other officer of the highest rank who is present at the spot should adopt ways and means which would cause the least effect in the dispersal. It can therefore be stated that at the very first instance, it would be the responsibility of the police officer of the highest rank to ensure that no such unlawful assembly is ever allowed to gather especially when there was any scope for such assembly in a vulnerable place like that of the High Court and that too on a day when the lawyers resumed their Court work after more than 20 days of boycott.
117. Furthermore under Section 130(3), it is specifically prescribed that even when any such officer in command of the armed force that requisitioned the use of little force and do as little injury to person and property in the process of dispersal or arrest or detention of such persons.
118. When we examine the implication of Section 130(3), at the outset, it is to be pointed out that it was not disclosed before us as to who were all the officers in command of any of the armed force, which were drawn into the High Court premises on that day. If any violation of the prescription of Section 130(3) is to be examined, it will be well nigh possible for any one to pin point to the concerned officer in command who can be held responsible for any excess in carrying out the process of lathi charge by the armed forces. The report of the Registrar General which we have stated in detail discloses the extensive damages caused to the vehicles parked inside the campus numbering more than 100 and the injuries caused to advocates, staff and others numbering nearly 139 apart from the damages caused to the buildings of the High Court, Small Causes Court, City Civil Court, library sections of the Law Association and Madras High Court Advocates Association. When Section 130(3) is read along with the Drill and Training Manual it is apparent that there cannot be an indiscriminate hitting of any person all over the body and wild destruction of properties. When we viewed the CD placed before us by the Commissioner of Police, the Additional Commissioner of Police as well as at the instance of the Advocate Associations, it was quite visible that the armed forces which were let loose on that day were in a hitting spree. They did not spare even a van, which carried the symbol, i.e. *ePjpj;Jiw (Judiciary)* the vehicle which was provided by the State Government for the subordinate Judicial Officers to reach the Court and get back home. In fact one of the Court Halls of the Small Cause Court namely the XII Court Hall was also damaged in the process of lathi charge. Though the police officers would claim that they were only trying to chase the advocates, the same was not true. The beating of the advocates by surrounding them as a group or any individual advocate is quiet visible in the videograph which is highly shocking. The photographs placed before us discloses the extent of damage caused to the library books shelves and the vehicles which only shows that as part of the process of lathi charge uncontrolled violence was unleashed inside the premises and since there was no officer in command, we can only hold that the very same four officers namely the Commissioner of Police, the Additional Commissioner of Police, the jurisdictional Joint Commissioner of Police and the jurisdictional Deputy Commissioner of Police were squarely responsible for the violation of the provisions contained under Sections 129 and 130 of the Cr.P.C.
119. Under Section 131, also falling under Chapter X, it is stated that the use of armed force for the purpose of dispersing of any unlawful assembly can be carried out by an officer in command. While using any armed force it should be carried out under the direct supervision of the commandant of that force and not by any other officer. Whereas on 19.02.2009, it is not the case of the above four police officers that there was any commandant to control the armed forces. On the other hand admittedly it was the above four officers who directly used the armed forces and thereby providing scope for such force to indulge in uncontrolled action of lathi charge and thereby causing extensive damages to men and material. In fact the total extent of compensation disbursed from the funds furnished by the State Government was in the order of Rs.50,41,008/-, it can be therefore visualized as to the extent of damages that had been caused to men and material by the use of force.
120. With that when we examine the immunity provided under Section 132 falling under Chapter X, it specifically states that no prosecution against any person for any act purporting to be done under Sections 129, 130 and 131 shall be instituted in any Criminal Court. In the foremost, sub-section (2)(a) makes it clear that in order to avail such immunity, the officer concerned should have acted under those Sections in good faith. In fact Sections 132(2)(a) to (d) makes it clear that in order to claim protection under the substantive part of Section 132(1) action on good faith is paramount or such member of the armed force does any act in obedience of any order which he is bound to obey. Section 132 therefore makes it clear that good faith should be the basis for an officer or a member of the armed force to claim any benefit provided under the said Section.
121. Having regard to our conclusion in the earlier paragraphs where we have held that the Commissioner of Police, the Additional Commissioner of Police, the jurisdictional Joint Commissioner of Police and the jurisdictional Deputy Commissioner of Police were squarely responsible for the ghastly incident, we hold that having regard to the manner in which they exercised their power while ordering lathi charge by invoking Sections 129 to 131 of the Code of Criminal Procedure, we have no hesitation to hold that there was absolutely no faith in their conduct much less good faith in order to enable them to avail the protection under Section 132(i) of the Code.
122. Though we are conscious of our limitation while dealing with Section 132 of the Code, in as much as, we are not presently dealing with any prosecution as against those officers but yet for the limited purpose of finding out and identifying the officers responsible, we have to necessarily examine the defence put forth before us at the instance of the above police officers by Dr.Rajeev Dhavan by relying upon the said provisions. In any event, any conclusion of ours in relation to the said provision should be exclusively for the purpose of passing orders in these writ petitions, in as much as, our decision is based on the materials, which were placed before us by the respondents themselves.
123. In this context, it will be worthwhile to refer to certain decisions placed before us by Dr.Rajeev Dhavan as well as Ms.R.Vaigai.
124. Dr.Rajeev Dhavan relied upon the decisions reported in 155 (2008) DLT 209 (Police Commissioner Vs. Yashpal Sharma) and MANU/DE/2653/2007 (Commissioner of Police Vs. Manoj Sharma) for the proposition as to what constitutes reasonable force. In the above referred to decisions it was held whether the force used in a particular case, to disperse such demonstration, is reasonable or not would depend upon the facts and circumstances of each case. As to how much force is necessary to disperse the unlawful assembly should be left to the decision of the Executive Magistrate or the police officer concerned to take a decision on the spot assessing the situation and such assessment of the situation has to be left to the officer concerned. In fact in the decision relating to Commissioner of Police Vs. Manoj Sharma (MANU/DE/2653/2007), it is held
***In a situation of maintenance of law and order decisions are to be taken instantly and there is not enough time for reflection. Such decisions are to be taken by the officer in-charge of the situation**.*
125. The above referred to decisions will be of no assistance to the respondent police. As held by us earlier, the fault of the respondent police is in having allowed the offer of surrender by the accused advocates to drift to a detrimental situation and thereby made it vulnerable for the police themselves to get rid of it and in that process, the unprecedented damage was caused to a constitutional machinery which was totally unwarranted and uncalled for.
126. Viewed in that respect, it was immaterial to examine the justification for ordering lathi charge by relying upon the situation, which prevailed. In our considered opinion, the situation itself was created by the imprudent action of the respondent police officers and therefore the justification of their conduct cannot be judged based on the ultimate action but had to be necessarily judged based on the situation that prevailed at the very inception namely at 11.30 am and thereafter when the respondent police officers paved the way for any one to create the said unpleasant situation.
127. It will be worthwhile to refer to Section 52 of the Indian Penal Code, which defines *good faith*. Section 52 reads as under:
*52. Nothing is said to be done or believed in *good faith* which is done or believed without due care and attention.*
128. In this context, we can also usefully refer to the decision of the Hon*ble Supreme Court reported in (2001) 2 SCC 171 (S.K.Sundaram In Re.), paragraph 28 and 29 of the said decision reads as under:
*28. The expression *good faith* in criminal jurisprudence has a definite connotation. Its import is totally different from saying that the person concerned has honestly believed the truth of what is said. Good faith is defined in Section 52 of the Indian Penal Code thus:
*52. Nothing is said to be done or believed in *good faith* which is done or believed without due care and attention.*
29. See the language of the law in this regard. It starts in the negative tone excluding all except what is allowed to be within its amplitude. Insistence sought to be achieved through the commencing words of the definition *nothing is said to be done or believed in good faith* is that the solitary item included within the purview of the expression *good faith* is what is done with *due care and attention*. Due care denotes the degree of reasonableness in the care sought to be exercised. In Black*s Law Dictionary, *reasonable care* is explained as
*such a degree of care, precaution, or diligence as may fairly and properly be expected or required, having regard to the nature of the action, or of the subject-matter and the circumstances surrounding the transaction. It is such care as an ordinary prudent person would exercise under the conditions existing at the time he is called upon to act*.*
129. Therefore in order to establish good faith one will have to show his previous conduct of due care and attention. When we apply the above ratio to the facts of this case, our analysis to the decision making process applied by the Commissioner of Police, Additional Commissioner of Police, jurisdictional Joint Commissioner of Police and the jurisdictional Deputy Commissioner of Police makes it clear that there was total lack of proper care and caution taken while taking a decision. Since we have elaborately dealt with their conduct right from the initial stage of offer of surrender and the ultimate lathi charge ordered, we are convinced that there was total lack of due care and indiscreet decision taken unmindful of the place, persons, time and the necessity for taking such a decision. It was not the case that the officers were totally kept in dark about any of the prior incidents in which the concerned persons were involved or situation that was prevailing on that date namely 19.02.2009, where it can be said that resort to lathi charge was imminent and it was unavoidable at that point of time. On the other hand our discussion lead us to hold that instead of preventing any untoward incident taking place inside the High Court campus, by the foolhardy act of the police officers themselves a piquant situation was created and in order to guard themselves and them alone; not any public or other innocent persons; a resort was made to the extreme step of lathi charge in such an extensive manner which can never be called as one carried out in good faith or that there was due care or attention made in order to enable them to seek protection under Section 132(i) of the Code.
130. In this context it will also be appropriate to refer to Chapter XXXIX of the Police Standing Order and PSO 699(3)(a), 703(2)(h)(i)(j), 703(3) and 703(4)(e) which are relevant which reads as under:
*PSO 699. Preventive Action:
(1) ***
(2) ***
(3) (a) All public officers shall consider it their duty to do everything that is possible for the removal of causes of friction, communal or otherwise, to foster good relations and friendly feelings between different sections of the public, to take all possible precautions to prevent disorders and to spare no efforts in bringing disorders under control with the least possible delay. There should be no hesitation in taking disciplinary action against any Government servant who is guilty of any willful neglect of duty or who contributed openly or covertly to the origin or the continuance of the tension.*
PSO 703. Dispersal of Unlawful Assemblies:
(1) ***
(2) (h) If the members of the unlawful assembly do not disperse, the Executive Magistrate or the senior most Police Officer present in the absence of the Executive Magistrate shall direct the Police to use force, that is necessary for the purpose. The nature of force to be used, tear gas, lathi cane charge or water jet and the method of quantum of force to be used should be decided by the senior most Police Officer present on the spot.
(i) If the crowd refuses to follow the lawful instructions to disperse, the riot flag should be raised, the attention of the mob drawn through a bugle call with long blast and a clear warning that force would be used to disperse them will be given through megaphone. The operation will commence if the mob refuses to heed to the warning.
(j) Officers commanding police parties will on every occasion when employed in the suppression of a riot of enforcement of the law, ensure that the fullest warning is given to the mob in a clear and distinct manner before any order is given to use tear gas or lathi/cane or fire arms and to use the most effectful means to explain before hand to the people opposed to them, in the event of the Police party ordered to fire that the fire will be effective.
(3) If the crowd becomes defiant tear gas should be used effectively. If this becomes in fructious then lathi cane charge can be made. If the crowd is still defiant resort, may be had to the use of fire arms.
(4) (3) If water jets or tear gas fail to disperse the mob, lathi cane charge should be ordered. Lathi/Cane charges should not be attempted if the strength of the Police force is not adequate to create an effect on the crowd and the crowd is likely to overwhelm the Police party easily. The personnel engaged in the lathi/cane charge should be under the proper control and the charging should cease as soon as the desired objective is achieved. The procedure laid down in the Drill and Training Manual will be followed. Care should be taken to prevent the lathi/cane sections getting separated from the main party and the Commander.*
131. Under the Tamil Nadu City Police Act, 1888 in Section 3 the expression Commissioner is defined which means the Commissioner of Police for Madras referred to in Section 5. Under Section 5, it is stated that the administration of the Police of the City of Madras shall be vested in an officer to be styled the Commissioner of Police for Madras.
132. The Joint Commissioner of Police, Deputy Commissioner of Police and the Assistant Commissioner of Police are appointed by the Government in exercise of power vested with it under Section 6 of the Tamil Nadu City Police Act. Under Section 7 of the said Act, the Commissioner of Police by virtue of his office, is designated as Executive Magistrate for the purpose of the Code of Criminal Procedure and vested with powers as an Executive Magistrate.
133. On behalf of the respondent police officers Dr.Rajeev Dhavan in his submissions contended that the resort to lathi charge became imminent since the threat perception prevailing on that day necessitated such an action. In support of the said submission, the learned senior counsel wanted to rely upon the various incidents of advocate excess in and around the High Court campus. The learned senior counsel referred to the listed out cases in pages 165 to 259 of Respondent Vol-II.
134. According to the learned senior counsel there were as many as 92 criminal cases booked against several advocates between the years 2001 to 2007; the recent clash between two group of law college students on 12.11.2009; the incident that took place in the Court of the Acting Chief Justice on 29.01.2009 and the 5th Court presided over by Mr.Justice S.Manikumar; the hijack of MTC bus by advocates on 30.01.2009; the burning of the portrait of Dr.Subramaniam Swamy in the course of the demonstration by about 50 advocates on 03.02.2009; the looting of a cycle shop (Bombay Cycle Mart) opposite to the High Court campus alleged to have been done by the advocates on 04.02.2009; the burning of Congress Party flag and portraits of Congress leaders in the High Court campus by about 100 advocates headed by one Mr.Kanakraj on 11.02.2009; the procession taken out by advocates within the High Court campus and burning of the Congress party banner on 12.02.2009, headed by Mr.Kanakraj and the procession taken out by 75 advocates on the same date from the High Court and their attempt to lay siege to the Army Headquarters at Chennai; the incident on 13.02.2009, by two groups of advocates headed by Mr.Kanakraj and Rajnikanth in the procession to picket the Central Railway Station; burning of the photos of Ms.Sonia Gandhi and Sri Lankan President within the High Court campus by 20 advocates on 16.02.2009 and also burning of Election Photo Identity Cards by 35 advocates renunciating their Indian Citizenship apart from burning the photos of Ms.Sonia Gandhi.
135. By referring to the above, the learned senior counsel would contend that when such a high amount of threat perception was prevailing which was assessed by the police, it cannot be held that the situation did not warrant a lathi charge. The learned senior counsel also placed reliance upon (1997) 7 SCC 91 (Amitabh Bachchan Corporation Ltd. Vs. Mahila Jagram Manch) for the proposition that the Court cannot substitute its own judgment for the subjective satisfaction of the police officer who was in the midst of a grave situation and was trying to maintain law and order. With reference to the above proposition of law there can be absolutely no quarrel, but even while applying the above principle to the facts of this case, we have only held that the concerned police officers miserably failed to thwart the incident of such a magnitude over which they had absolute control at the very inception namely at 11.30 am, when the threat perception relating to the visit of Dr.Subramaniam Swamy came to an end and the entire armed force retired to B-2 Police Station for debriefing.
136. In our considered opinion the conduct of the concerned police officers in having entertained any proposal at the instance of the accused advocates on 17.02.2009, was wholly an imprudent conduct which triggered the whole ghastly incident for which they and they alone were squarely responsible. It can never be held that the various past incidents which occurred between 2001 and 2008 or the incidents occurred between 29.01.2009 to 17.02.2009, can be construed as cause of threat perception to hold that that was the basis for ordering the lathi charge. Such a submission of the learned senior counsel cannot be accepted in as much as the threat perception in order to justify any lathi charge should have developed on its own at the spot and in order to control such a perception it became imminent for the police to resort to lathi charge. By no stretch of imagination it can be said that all the incidents that happened prior to 19.02.2009, was brewing and was existing in an uncontrolled manner, in order to state that on 19.02.2009 any threat perception was prevailing either to the litigant public or to the other advocates and that the police had no other option except to resort to lathi charge on any unruly mob. On the other hand even according to the Commissioner of Police and other police officers nothing untoward happened when Dr.Subramaniam Swamy visited the High Court to attend two of the cases i.e. one before the Bench headed by the Hon*ble Acting Chief Justice and the other in the 5th Court before Mr.Justice S.Manikumar. After attending to those cases, he also peacefully left the High Court campus by 11.30 am and there was no incident worth mentioning even thereafter since the very fact that the jurisdictional Joint Commissioner of Police withdrew the entire police force to B-2 Police Station for debriefing was proof positive to support the said conclusion.
137. Any amount of assertion on the part of the Commissioner of Police, the Additional Commissioner of Police, the jurisdictional Joint Commissioner of Police, or jurisdictional Deputy Commissioner of Police, in attempting to portray a picture of threat perception was wholly baseless and does not merit any consideration.
138. In fact though the various cases as between 2001 and 2009 have been listed out before us in Page Nos.167 to 259 of the Respondents Volume * II, we are at a loss to understand as to how and why the cases pertaining to the years 2001 onwards have not made any progress at all especially when in many of the cases, the charges are for grave offences such as rioting with deadly weapons, attempt to murder, criminal intimidation, causing hurt, wrongful restraint, assault on public servant discharging his duty, negligent conduct with respect to fire and destruction of public property. The argument therefore does not stand to any reason.
139. A perusal of the list of cases in pages 167 to 259 of Respondent Vol-II, shows that almost all the cases were either under investigation or pending trial. If the police authorities were keen or alive to such criminal cases pending against the advocates which caused concern, it is hard to believe that a case of the year 2001 was still under the investigation of the police authorities which means that no final report was filed. Even in respect of those cases where charge sheets have been filed they are pending trial for more than 6 to 7 years. That only shows total lack of interest shown in dealing with the criminal cases launched against the advocates for reasons best known to the concerned police authorities.
140. It is not the stand of the respondent police that there were any other impediment or court orders in all those cases which tied their hands from proceeding with the investigation, filing of final report and conduct of trial. When that is the interest shown in respect of those good number of cases, we are not in a position to accede to the submission of the learned senior counsel made on behalf of the respondent police officers that those large number of pending cases should be construed as a threat perception in order to justify their conduct on 19.02.2009. Therefore, the said contention put forth on behalf of the respondent police officers cannot also be accepted.
141. In order to justify the conduct of the respondent police officers in having acceded to the offer of surrender reliance was placed upon the decision reported in 1995 Cri.L.J. 1956 (In Re: Rajendran and others) wherein it has been held as under in paragraph 69:
*69. Hence it may be, that the police officials have a right to arrest offenders, anywhere it will even be possible in the event of surrender by any of the offenders before Court, for, the police to seek police custody for the purpose of interrogation. It could have been, easily stated by the police officers, in the instant case, that they were expecting, to arrest Thiru. Natarajan and a part of apprehension, after initial arrest, had taken place inside the Court campus. Police officers must have intimated to the Senior Magistrate about the closure of northern gate fully and the southern gate partially and the purpose for which they had closed the gates. They must have equally informed the other heads of the department, in the variety of officers situated in that campus. If there is an emergency, the police can certainly act, without forwarding prior intimation, but even then they would certainly owe a duty to inform the concerned officers of Court as well as other officers soon thereafter about the closure of the gates. In a situation, emergent and the reason, that led to such closure.*
142. Even going by the ratio laid down in the said decision, it has been held therein that whether the arrest is taking place inside the Court campus due intimation to the concerned officers should be made. For an arrest in the normal course in any criminal case such a pre-condition is called for even in the perception of the police officer when an extraordinary situation was prevailing for quite a long time prior to 19.02.2009, we wonder how an unilateral decision was taken by the police officers to resort to arrest certain accused who were stated to have volunteered to surrender but did not carry out their original offer but were taking a different stand at different point of time but yet at no point of time the police officers though it fit even to intimate the Registry, leave alone seek the permission of the Hon*ble Acting Chief Justice to resort to such an extraordinary step. In our view, the failure of the respondent police not to intimate and get necessary clearance from the Registry and the Hon*ble Acting Chief Justice was a grave blunder committed by them which was one of the causes for the ultimate havoc that happened on that day. In fact in the order dated 19.02.2009, the Full Bench expressed its deep anguish by stating with what authority the police in such large number entered the campus for the purpose of effecting an arrest and the ultimate indiscriminate lathi charge resorted to inside the campus. The stand of the respondent police in relying upon the letter of the Registrar General dated 18.02.2009, can be of no avail in as much as the said letter never granted a carte blanche to act in any manner they liked in the matter of dealing with the accused advocates or for that matter against any other accused inside the Court campus. Though the submission of Ms.R.Vaigai for a total immunity as has been provided for Parliament for which separate rules and regulations have been prescribed cannot be applied for other institutions including the judiciary, it cannot be stated that in the absence of any such provisions statutory or otherwise, a prime institution like that of a High Court which is a constitutional machinery can be treated by the police authorities like any other public place and carry on with any activities which would bring grave disrepute to such a prime institution and that too without bringing it to the notice of the concerned authorities of that institution, leave alone without prior permission.
143. In fact when the unsavory incident took place on 17.02.2009, inside Court Hall No.3, these very same officers thought it fit to meet the Hon*ble Acting Chief Justice and the other officials of the Registry even for registering a case against the concerned accused advocates. When the very same police officers were aware that such a step was required when it comes to the question of carrying out their operation relating to an incident that took place inside the High Court campus, it is not known how everything was given a go bye in respect of an incident which was gaining grave momentum right from 12.00 noon onwards and with reference to which nothing was brought to the notice of the Court till the whole episode was completed at around 6.00 * 6.30 pm and whereafter the Commissioner of Police thought it fit to meet the Hon*ble Acting Chief Justice.
144. We are not for a moment suggesting that even if a gross crime takes place inside the campus which warrant the interference of police, the police should sit quite and seek for the permission before taking up any action to prevent any such crime taking place or perpetration of any such a crime.
145. In fact when reference was made to an order of this Court in the case relating to Law College incident, that was a converse case where the police remained a silent spectator when a ghastly crime was being committed just in front of the police force but yet none of the police personnel including an Assistant Commissioner of Police though it fit to interfere and prevent such a crime of grievous assault on one single individual by a group of individuals. On that occasion also, the police miserably failed to assess the situation in the proper perspective while exercising their powers. The reliance placed upon the said decision therefore does not support the stand of the respondents.
146. In this context we feel it appropriate to refer to paragraph 56 and 97 from the judgment namely 1995 Cri.L.J. 1956 (In Re: Rajendran and others) which needs to be stated, in as much as, we feel that the unfortunate incident that occurred on 19.02.2009 and the gravity of which is such that this Court has to necessarily take a firm view and pass appropriate orders so that the message can be made loud and clear that no such recurrence can ever be dreamt of in future by any one. The said paragraphs read as under:
*56. Mrs.Prabha Sridevan, President, Women Lawyers* Association, submitted that the after-noon incident had a close connection with the morning closure of gates Advocates as well as policemen, were important limbs, for the former were right protectors * while the latter were law enforcers. The tension, if any, between them must be comfortably resolved. Re-orientation programmes must be organized.
* * * * *
97. We are very clear and let us transmit a certain message. We are totally conscious, that we have dealt with the contemners, rather lightly, but that has been the outcome after serious and thought provoking process and the positive response of ours, to the fervent, sincere and responsible plea, backed up with purposeful panorama of a possible good ear ahead, made by learned senior counsel, learned Advocate General and the Presidents of various Associations of Advocates. Let not any one walk out of this Court Hall with an impression, that whatever be the gravity of the offence, one could always escape lightly. The instant untoward incident, has been analysed by all concerned, and the answer in unison was that let this episode serve as a sure foundation or eye opener for fostering of a better tomorrow, with an assurance that recurrence, if any, though chances may be bleak, will have to be gravely taken note of and appropriate punishment meted out.*
147. Dr.Rajeev Dhavan, in his submissions contended that the counsel representing the advocates made several prayers such as suspension of police officers, production of various circulars, initiation of disciplinary action against officers, safety of advocates, investigation and prosecution by CBI, registration of criminal complaint against police officials, compensation for injured advocates, damages caused to men and material etc., and contended that many of those grievance including direction for investigation and prosecution by CBI have been already fulfilled. In so far as the suspension of the police officers and initiation of disciplinary proceedings is concerned, the learned senior counsel by making a reference to Articles 309 to 311 of the Constitution of India contended that there are certain well laid down principles contained in those constitutional provisions and the same cannot be given a go bye and the Court should not take upon the role of the State by ordering suspension or any other action. By relying upon the decisions reported in (1968) 1 SCR 185 (Roshan Lal Tandon Vs. Union of India), (1997) 6 SCC 623 (Chairman, Railway Board Vs. C.R.Rangadhamaiah), (1962) 1 SCR 151 (Jagannath Prasad Sharma Vs. State of U.P.), 1958 SCR 828 (Parshotam Lal Dhingra Vs. Union of India) and 1963 Supp (1) SCR 648 (State of Orissa Vs. Bidyabhushan Mohapatra), the learned senior counsel contended that the position of civil servant is one of status and is not like a contract of service between master and servant and therefore it should be left to the State to decide as to what course of action it should take against any of its erring employees. As far as the prescribed procedure contained in Articles 309 to 311 is concerned, the same cannot be disputed. However, we are of the view that the powers of this Court to give appropriate directions to the State to take any action against the erring officers is not taken away. For that proposition, we seek succor for that proposition in the decisions relied upon by Ms.R.Vaigai reported in (1996) 4 SCC 742 (Punjab & Haryana High Court Bar Association Vs. State of Punjab) at para 5, (2004) 5 SCC 26 (Daroga Singh Vs. B.K.Pandey) at para 49 and (1991) 4 SCC 406 (Delhi Judicial Service Assn. Vs. State of Gujarat) at para 54. It will be sufficient if we make a reference to the observations of the Hon'ble Supreme Court made at paragraph 54 in the decision reported in (1991) 4 SCC 406 (Delhi Judicial Service Assn. Vs. State of Gujarat) :
"54.We are constrained to observe that the State Government did not immediately take effective steps against the erring officials. In spite of the direction issued by this Court the erring police officers were neither arrested nor placed under suspension. It was only after this Court took serious view of the matter and directed the State Government to suspend the erring police officers and arrest them, the State Government moved in the matter. The apathy of the State Government in taking effective action against the erring police officers leads to an impression that in the State of Gujarat, police appears to have upper hand, as the administration was hesitant in taking action against the erring police officers. If this practice and tendency is allowed to grow it would result in serious erosion of the Rule of Law in the State. We hope and trust that the State Government will take effective measures to avoid reoccurrence of any such instance. The State Government should further take immediate steps for the review and revision of the Police Regulations in the light of the findings recorded by the Commission."
148. With this when we deal with the submission as to the judicial restraint to be adopted, the various decisions relied upon were all cases where the Hon*ble Supreme Court was considering the final order of punishment and with reference to which the scope of interference has been set out. We are at a stage where the consideration is as to in what manner such of those police officers who have been held to have acted highly detrimental to the interest of the institution and such detrimental action has caused a permanent black mark on the institution which cannot be lightly ignored or condoned. In such a situation while on the one hand the various associations of lawyers and other respective counsel would commend this Court to direct the State Government to place the concerned officers under suspension and take appropriate disciplinary action against them, the learned senior counsel appearing for the respondent police officers would canvass for the matter to be left to the discretion of the State.
149. In fact in the order dated 18.03.2009, the Full Bench after the submission of the report by the Commissioner of Police of the same date thought it fit to place the Additional Commissioner of Police and the jurisdictional Joint Commissioner of Police under suspension. The Full Bench has given its reasons in paragraph 8, which reads as under:
*8. As we find that a prima facie case made out to initiate disciplinary proceeding against the concerned officers, to ensure the State Government to pass appropriate orders, we are of the view that (i) Mr.A.K.Viswanathan, IPS, Addl. Commissioner of Police (Law & Order) and (ii) Mr.M.Ramasubramani, IPS, formerly Joint Commissioner of Police (North) (Jurisdiction JCP), should be placed under suspension, as they were the persons who were in the helm of the affairs and under whose direct supervision the operation was carried on.*
150. Since the Hon*ble Supreme Court held that the said direction came to be issued without hearing the Additional Commissioner of Police and the jurisdictional Joint Commissioner of Police, this Court was directed to give an opportunity to them before passing any further orders.
151. Be that as it may, the learned Advocate General in his own inimitable style made a very fair statement to the Court that the State neither supports nor oppose the action of the police and instead it wanted to identify the concerned officers who are responsible for the ghastly incident against whom it is always prepared to take appropriate action. In his submission the learned Advocate General stated that for that purpose the State Government has appointed Dr.N.Sundaradevan, I.A.S., as One Man Committee and that unfortunately in the enquiry held by him, none of the advocates participated. He would therefore contend that in the event of the Court finding any officer responsible, the State would carryout the directions of this Court scrupulously. In the light of the above stand of the learned Advocate General, we are of the considered opinion that in the extraordinary facts placed before us, we are convinced that the four police officers whom we have held responsible for the whole ghastly incident that took place on 19.02.2009, inside the High Court campus in which severe damage was caused to men and materials by their imprudent act which has created an indelible stigma on the prime institution, it would be in order for the State to take necessary disciplinary action against them and in order to proceed with such action without any interference, it would be in order for the State Government even to place them under suspension pending disciplinary action. Having regard to the solemn undertaking placed before us through the learned Advocate General, we are convinced that it would be suffice for the State to take note of our above observation in the proper perspective and leave no stone unturned to fulfill the objective in the interest of justice. We answer Question No.(iv) as above.
QUESTION No.(vi)
152. As far as the power of this Court to initiate any contempt action is concerned, the High Court being a Court of Record it has got every power to punish any one for contempt of itself. It is the constitutional mandate as stated under Article 215 of the Constitution of India.
153. As far as the contempt is concerned the various submissions of learned counsel who appeared for the advocates is considered, Mr.R.C.Paul Kanakaraj, in his submissions pointed out that after the incident that took place in the High Court on 19.02.2009, the Court could not function on 20.02.2009, 23.02.2009 and 24.02.2009. As far as the City Civil Court and Court of Small Causes and other judicial forums located inside the campus was concerned, the same were able to function only from 02.03.2009. In fact these days were undeclared holidays for all the above institutions.
154. As stated by us earlier in the annals of the set up of the High Court for more than a century and half, this was the first time that Courts were immobilized due to the incident that happened inside the High Court campus. According to the learned counsel the said situation would fall within the definition of criminal contempt as defined under Section 2(c) of the Act. The learned counsel also submitted that after 11.30 am the retention of the armed forces inside the High Court campus without any permission and without any justifiable cause calls for severe action. The indiscriminate beating of the lawyers and others in which, many sustained head injuries. One of the P.As to the Hon*ble Judge was severely beaten. Above all a sitting Judge of this Court also sustained a lathi blow. Ms.R.Vaigai in her submissions stated that neither the State nor the police have realized the enormity of what happened on 19.02.2009 and therefore to uphold the majesty of the institution namely the judiciary, the Court alone should come for the rescue. According to her the CD produced by the police is an edited version in as much as the time recorded therein jumps intermittently. The statement of the Commissioner of Police about his entry into the High Court premises itself is incorrect in as much as one of the photographs discloses that while he was very much present inside the High Court premises and was in the midst of police personnel the time in the watch worn by him itself display 4.45 pm, whereas he would repeatedly contend that he entered the High Court premises only at 5.00 pm. She also contended that the beating of Hon*ble Mr.Justice A.C.Arumugaperumal Adityan was clearly visible in the CD produced at her instance at which point of time also the Commissioner of Police was very much present inside the High Court campus which was around 4.15 pm. The learned counsel therefore contended that the Commissioner of Police was attempting to mislead this Court by not disclosing the correct facts relating to the incident.
155. The learned counsel contended that the incident as well as its aftermath has caused grave prejudice to the institution and that it was a loss of dignity and grace of the institution. She further contended that it was not as if the police officers could not have assessed the magnitude of the issue before even venturing to entertain the plea of surrender by the accused advocates, and therefore their failure to seek the permission of the Court to entertain the plea of such accused advocates cannot be pardoned. The enormity of the situation was such that it was so extraordinary the police officers should have applied great caution before entering upon it. Therefore according to her their failure to obtain prior permission of the Court to carry out the exercise on that day or at least inform the Registry before doing that was a serious conduct, which calls for serious action. The learned counsel further contended that when the Commissioner of Police himself admitted that he anticipated huge trouble, it was constitutionally mandated upon him to have taken the necessary precaution to seek the permission of the Hon*ble Acting Chief Justice especially when he wanted deployment of large number of armed forces to carry out that mission. The learned counsel therefore contended that it calls for serious contempt action against the police officers.
156. Mr.N.G.R.Prasad, learned counsel representing the lawyers in his submissions pointed out that it was not a mere police excess but it is a state excess and that the attack was not only against the lawyers but against the whole institution which was not innocent. The learned counsels therefore contend that it calls for serious action by way of initiation of contempt.
157. As against the above submissions on contempt, Dr.Rajeev Dhavan in his submissions contended that in the first place the submission of the learned counsel for the advocates drawing an analogy of the judiciary on par with the parliament was somewhat overbroad argument. According to the learned counsel even while acknowledging the status of judiciary in particular its independence to be safeguarded by virtue of articles 50 and 121 of the Constitution, yet it would be too wide a proposition to be equated with parliamentary privileges to be extended to judicial institution. According to the learned senior counsel having regard to the very many constitutional provisions under Articles 105, 194 and specific regulatory provisions providing for autonomous control for the Parliament over its precincts especially in the matter of arrest in the House, the enclosed vicinity and of its members, such an extraordinary privilege has not been provided for any other institutions including judiciary except what has been provided under Articles 121, 211 and 124(4) of the Constitution as well as Section 77 of the Indian Penal Code.
158. The learned senior counsel even while making a reference to Articles 129 and 215 of the Constitution which has provided special powers of contempt for the Supreme Court and the High Court, would contend that in exercise of such power utmost restraint need to be applied. According to the learned senior counsel the contention of the learned counsel representing the lawyers allege both civil as well as criminal contempt as can be stated as under:
(a) When the civil contempt alleged relating to the order dated 19.02.2009, in W.P.Nos.181 to 183 of 2009 which directed the appellant to file report on the events of 17.02.2009.
(b) Order dated 19.02.2009 in Suo Motu W.P.No.3335 of 2009 directed release of advocates and no further arrest to be made.
(c) Order dated 18.03.2009 in Suo Motu W.P.No.3335 of 2009 directing disciplinary action against Messers A.K.Viswanathan and M.Ramasubramani, and
(d) Order dated 13.03.2009, in W.P.Nos.3703 to 3705 of 2009 and M.P.Nos.1 to 8 of 2009 and Crl.O.P.No.4085 of 2009, directing the police to produce the log book and telephone records of all senior officers
As far as the criminal contempt is concerned, the learned counsel would contend that behaviour of the advocates inside the Court Hall on 17.02.2009, throwing eggs on Dr.Subramaniam Swamy, throwing of stones by lawyers and indulging in violence on 19.02.2009, burning of the police station inside the High Court campus, contradictory affidavits of lawyers in these proceedings and the articulation of slogans against judges on 19.02.2009 needs to be examined. He also referred to the allegation of the petitioners as regards the criminal contempt alleged against the respondent police officers, viz., bringing in reinforcement without the consent of the Chief Justice; a pre-planed attack on the High Court and its personnel; attack on the lawyers, judges and staff; filing wrong or misleading affidavits and information; and having damaged lawyers* property and High Court building and property.
159. The learned senior counsel submitted that the procedure to be followed is generally as per the rules of the Madras High Court dated 07.08.1975. As a matter of practice, the advice of the learned Advocate General is sought which is entitled to the highest consideration and in any case it cannot be disputed that obstruction of the course of justice would enable this Court to initiate contempt of itself suo motu.
160. When we consider the above submissions of the respective counsel at the outset we wish to state that the incident that took place on 17.02.2009, is being dealt with by a Full Bench and therefore we refrain ourselves from dealing with the said issue in this order. On contempt action, we wish to be guided by the various decisions on this aspect. In the decision reported in (2004) 5 SCC 26 (Daroga Singh Vs. B.K.Pandey) the Hon*ble Supreme Court dealt with a case where the conduct of the policemen who was also an Office Bearer of the association of policemen at district level and who along with his supporters entered the chambers of First Additional District and Sessions Judge, Bhagalpur in Bihar after assaulting the Court peon, further assaulted the Sessions Judge himself. Due to the manhandling, the Sessions Judge felt dizziness and became unconscious. It was due to the timely arrival of a team of Doctors his life was saved. After assaulting the Sessions Judge and its Court Staff the police personnel took away certain records and damaged the doors and grills of the gate. They also assaulted some of the lawyers and damaged their furniture and the motor vehicle parked inside the Court compound. There was a report referring the names of the police officials who were identified by the Court staff as well as the Additional District Judge as well as the lawyers who were assaulted. Based on the report of the District Judge, the Division Bench of the High Court entertained a writ petition and after hearing the President of the High Court Advocates Association as well as the learned Advocate General, the Division Bench came to the conclusion that prima facie case of criminal contempt has been made out against the contemnors. Thereafter proceedings under the Contempt of Courts Act were initiated and contempt notice were issued by the Registry to the contemnors calling upon them to show cause why suitable action should not be taken against them for the alleged misconduct. The State Government was also asked to report about the steps taken relating to the incident. The Director General of Police found the officers guilty of the alleged incident and condemned the police officials for their act. The State Government acting on the basis of the report of the Director General of Police issued orders suspending all such officials from service. A Commission of Enquiry was also set up under the provisions of the Commissions of Enquiry Act, 1952. Apart from the departmental proceedings, Criminal cases were also lodged against them. When a request was made by the contemnors to keep the contempt proceedings in abeyance awaiting the outcome of the criminal prosecution as well as departmental proceedings, the High Court declined the said prayer. In response to the show cause notice, the contemnors condemned the incident of assault on the Additional District Judge. Some of the contemnors tried to justify the act by stating that there was resentment amongst police personal for the arrest of one of their colleagues and removal of stars from his uniform in the Court. Some of them pleaded alibi. The High Court after taking due care and caution dropped the proceedings against those who were not really involved in the incident but found at least 10 of them guilty and imposed punishment of simple imprisonment for a period of three months and for another 8 contemnors to undergo simple imprisonment for a period of two months. It was also made clear that the discharge of rule of contempt notice of the proceedings against the other 17 would not absolve them of their misconduct and guilt for their respective offences, if any. The said order of the High Court was the subject matter of challenge before the Hon*ble Supreme Court. Several contentions were raised and dealing with such contentions, ultimate conclusion of the Hon*ble Supreme Court are stated as under in paragraphs 26, 29, 31, 32, 33, 35, 41 and 44:
*26. What is made punishable under Section 228 IPC is the offence of intentional insult to a judge or interruption of court proceedings but not as a contempt of court. The definition of criminal contempt is wide enough to include any act by a person which would either scandalise the court or which would tend to interfere with the administration of justice. It would also include any act which lowers the authority of the court or prejudices or interferes with the due course of any judicial proceedings. It is not limited to the offering of intentional insult to the judge or interruption of the judicial proceedings. This Court observed in Delhi Judicial Service Assn. v. State of Gujarat: (SCC pp.457-58, paras 42 & 43)
The public have a vital stake in effective and orderly administration of justice. The Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with. The power to punish for contempt is thus for the protection of public justice, whose interest requires that decency and decorum is preserved in courts of justice. Those who have to discharge duty in a court of justice are protected by the law, and shielded in the discharge of their duties. Any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognisance of such conduct.
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29. We respectfully agree with the view taken in this judgment and hold that the High Court could initiate proceedings on its own motion under the Contempt of Courts Act against the appellants. On the facts of this case apart from the report sent by the Vth Additional District and Sessions Judge of the incident, Young Lawyers* Association had also filed a writ petition. The Presidents of the three Bar Associations and the Advocate General were present and heard before initiating the proceedings for criminal contempt. It has been noted by the High Court that *all the three Presidents of the High Court Associations and the Advocate General arrived at the conclusion that a prima facie case of criminal contempt was made out against the contemners*. This shows that the Advocate General of the State was also of the opinion that prima facie a case for initiation of proceedings for criminal contempt was made out and he was a consenting party to the initiation of the proceedings.
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31. It has repeatedly been held by this Court [Vinay Chandra Mishra, In re] that the procedure prescribed either under the Code of Criminal Procedure or under the Evidence Act is not attracted to the proceedings initiated under Section 15 of the Contempt of Courts Act. The High Court can deal with such matters summarily and adopt its own procedure. The only caution that has to be observed by the Court in exercising this inherent power of summary procedure is that the procedure followed must be fair and the contemners are made aware of the charges levelled against them and given a fair and reasonable opportunity. Having regard to the fact that contempt proceedings are to be decided expeditiously in a summary manner the convictions have been recorded without extending the opportunity to the contemners to cross-examine those who had deposed against them on affidavits. Though the procedure adopted in this case was summary but adequate safeguards were taken to protect the contemners* interest. The contemners were issued notices apprising them of the specific allegations made against them. They were given an opportunity to counter the allegations by filing their counter-affidavits and additional counter/supplementary affidavits as per their request. They were also given opportunity to file affidavits of any other persons which they did. They were given opportunities to produce any other material in their defence which they did not do. Most of the contemners had taken the plea that at the relevant time they were on duty in their respective police stations though in the same town. They also attached copies of station diaries and duty chart in support of their alibi. The High Court did not accept the plea of alibi as all these papers had been prepared by the contemners themselves and none of the superior officers had supported such a plea. The evidence produced by the respondents was rejected in the face of the reports made by the Additional District and Sessions Judge, Director General of Police coupled with affidavits of Mr Barai, the Additional District and Sessions Judge, two court officials and affidavits of some of the lawyers who had witnessed the occurrence.
32. The contempt proceedings have to be decided in a summary manner. The judge has to remain in full control of the hearing of the case and immediate action is required to be taken to make it effective and deterrent. Immediate steps are required to be taken to restore order as early and quickly as possible. Dragging the proceedings unnecessarily would impede the speed and efficiency with which justice has to be administered. This Court while considering all these aspects held in Vinay Chandra Mishra, In re (the alleged contemner) that the criminal contempt no doubt amounts to an offence but it is an offence sui generis and hence for such offence, the procedure adopted both under the common law and the statute law in the country has always been summary. It was observed that the need was for taking speedy action and to put the judge in full control of the hearing. It was emphasised that immediate steps were required to be taken to restore order in the court proceedings as quickly as possible. To quote from the above-referred-to case: (SCC pp. 609-10, para 26)
*However, the fact that the process is summary does not mean that the procedural requirement viz. that an opportunity of meeting the charge, is denied to the contemner. The degree of precision with which the charge may be stated depends upon the circumstances. So long as the gist of the specific allegations is made clear or otherwise the contemner is aware of the specific allegation, it is not always necessary to formulate the charge in a specific allegation. The consensus of opinion among the judiciary and the jurists alike is that despite the objection that the judge deals with the contempt himself and the contemner has little opportunity to defend himself, there is a residue of cases where not only it is justifiable to punish on the spot but it is the only realistic way of dealing with certain offenders. This procedure does not offend against the principle of natural justice viz. nemo judex in sua causa since the prosecution is not aimed at protecting the judge personally but protecting the administration of justice. The threat of immediate punishment is the most effective deterrent against misconduct. The judge has to remain in full control of the hearing of the case and he must be able to take steps to restore order as early and quickly as possible. The time factor is crucial. Dragging out the contempt proceedings means a lengthy interruption to the main proceedings which paralyses the court for a time and indirectly impedes the speed and efficiency with which justice is administered. Instant justice can never be completely satisfactory yet it does provide the simplest, most effective and least unsatisfactory method of dealing with disruptive conduct in court. So long as the contemner*s interests are adequately safeguarded by giving him an opportunity of being heard in his defence, even summary procedure in the case of contempt in the face of the court is commended and not faulted.*
33. In the present case the High Court had decided to proceed with the contempt proceedings in a summary manner. Due opportunity was afforded to all the contemners and after verifying and cross-checking the material available before it, coming from different reliable sources the High Court convicted only nine persons out of twenty-six persons arrayed as contemners before it. The High Court took due care to ascertain the identity of the contemners by cross-checking with the affidavits filed by the different persons. It is also based on the independent reports submitted by the Director General of Police and Superintendent of Police. We do not find any fault in the procedure adopted by the High Court in conducting the proceedings in the present case. For the survival of the rule of law the orders of the courts have to be obeyed and continue to be obeyed unless overturned, modified or stayed by the appellate or revisional courts. The court does not have any agency of its own to enforce its orders. The executive authority of the State has to come to the aid of the party seeking implementation of the court orders. The might of the State must stand behind the court orders for the survival of the rule of the court in the country. Incidents which undermine the dignity of the courts should be condemned and dealt with swiftly. When a judge is attacked and assaulted in his courtroom and chambers by persons on whose shoulders lay the obligation of maintaining law and order and protecting the citizen against any unlawful act, it needs to be condemned in the severest of terms. If the judiciary has to perform its duties and functions in a fair and free manner, the dignity and the authority of the courts has to be respected and maintained at all stages and by all concerned failing which the very constitutional scheme and public faith in the judiciary runs the risk of being lost.
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35. Plea that reasonable and adequate opportunity was not afforded to the appellants is equally untenable. We find from the record that all the materials (affidavits, show-cause notice, etc.) which were brought on record were properly served on the learned advocates appearing for the contemners. The reports submitted by the Vth Additional Sessions Judge, District Judge, affidavit of Shri Barai and his staff, namely, R. Das and B. Sharma and the other affidavits of the advocates who had seen the occurrence and the reports submitted by the Director General of Police and the Superintendent of Police were given to the learned advocates who were appearing for the contemners in the High Court. Statements of A. Natarajan, the then SP, Harihar Choudhary, the then Deputy Superintendent of Police, Ranjit Pandey, the then Sergeant Major and Shashi Lata Singh, the then SI were recorded by the High Court in the presence of all the lawyers. The Registry of the High Court was directed to keep their statements in a sealed cover. The contemners were permitted to file affidavits and produce any other material in support of the same. They were also permitted to file affidavits of any other person supporting their version. They were all taken on record. After affording due opportunity of hearing to the counsel appearing for the contemners, the High Court recorded the order of conviction. Thus the appellants were given the evidence which had come on the record. They were given an opportunity to controvert the allegations made against them and produce evidence in support thereof. Counsel appearing for the contemners were satisfied with the opportunity provided to them by the High Court. Plea that reasonable opportunity was not afforded to the contemners was not raised before the High Court. We are of the opinion that due reasonable and adequate opportunity was afforded to the appellants to defend themselves and put forth their point of view.
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41. In the constitutional scheme the judiciary is entrusted with the task of upholding the Constitution and the laws. Apart from interpreting the Constitution and the laws, the judiciary discharges the function of securing maintenance of law and order by deciding the disputes in a manner acceptable to civilised and peace-loving society. In order to maintain the faith of the society in the rule of law the role of the judiciary cannot be undermined. In a number of cases this Court has observed that foundation of the judiciary is the trust and confidence of the people of the nation and when such foundation or trust is rudely shaken by means of any disrespect by the very persons who are required to enforce the orders of the court and maintain law and order the people*s perception of efficacy of the systems gets eroded.
42. The judges are * as a jurist calls them * *paper tigers*. They do not have any machinery of their own for implementing their orders. People, while approaching the court of law which they regard as the temple of justice, feel safe and secure whilst they are in the court. Police personnel are deployed in the court campus for the purpose of maintaining order and to see that not only the judges can work fearlessly in a calm, cool and serene atmosphere but also to see that anyone coming to the court too feels safe and secure thereat. Every participant in court proceedings is either a seeker of justice or one who comes to assist in administration of justice. So is the expectation of the members of the Bar who are treated as officers of the court. We shudder to feel what would happen if the police personnel themselves, and that too in an organised manner, are found to be responsible for disturbing the peace and order in the court campus, for causing assault on the judges and thus sullying the temple of justice apart from bringing a bad name to an indispensable organ of the executive wing of the State.
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44. We have not been able to forget the policing role of the police of the British Raj wherein an attitude of hostility between the police and the policed under the colonial rule was understandable. It is unfortunate that in one of the largest constitutional democracies of the world the police has not been able to change its that trait of hostility.* (Emphasis added)
161. In the decision of the Hon*ble Supreme Court reported in (1995) 3 SCC 767 (Dhananjay Sharma Vs. State of Haryana and Others) while dealing with a false plea made before the High Court in a Habeas Corpus petition, the Hon*ble Supreme Court held as under in paragraph 38 :
*38. Section 2(c) of the Contempt of Courts Act, 1971 (for short the Act) defines criminal contempt as *the publication (whether by words, spoken or written or by signs or visible representation or otherwise) of any matter or the doing of any other act whatsoever to (1) scandalise or tend to scandalise or lower or tend to lower the authority of any court; (2) prejudice or interfere or tend to interfere with the due course of judicial proceedings or (3) interfere or tend to interfere with, or obstruct or tend to obstruct the administration of justice in any other manner. Thus, any conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceedings amounts to the commission of criminal contempt. The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any court of law exposes the intention of the party concerned in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery of by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence, commits criminal contempt of the court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in courts aims at striking a blow at the rule of law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a court of law. The stream of justice has to be kept clear and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the court and interfere with the due course of judicial proceedings or the administration of justice. In Chandra Shashi v. Anil Kumar Verma the respondents produced a false and fabricated certificate to defeat the claim of the respondent for transfer of a case. This action was found to be an act amounting to interference with the administration of justice. Brother Hansaria, J. speaking for the Bench observed: (SCC pp.423-24, paras 1 and 2)
*The stream of administration of justice has to remain unpolluted so that purity of court*s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court*s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.
Anyone who takes recourse to fraud deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.* (Emphasis added)
162. In the decision reported in (1996) 6 SCC 323 (Commissioner of Police, Delhi and another Vs. Registrar, Delhi High Court, New Delhi), the Hon*ble Supreme Court dealt with a case where the former Prime Minister P.V.Narasimha Rao was summoned by the Chief Metropolitan Magistrate/Additional Sessions Judge, Tis Hazari Court. As Mr.P.V.Narasimha Rao as former Prime Minister was to be provided with necessary security of highest degree, the Court was approached to permit the authorities to make the entire Court campus a sterilized zone. When the parties approached the Delhi High Court, seeking for change of venue and the place of trial, the High Court declined their request on the administrative side. The matter went before the Hon*ble Supreme Court. The Hon*ble Supreme Court while considering the rejection order of the Administrative Committee of the High Court took note of the detailed minutes which disclosed that the paramount interest of the Court is the normal functioning of the regular Courts even while noting that the security personnel even while providing security cover of special protection to the former Prime Minister cannot cause any inconvenience to the functioning of the Courts. That decisions also makes it clear that even under extraordinary circumstance such as affording of special protection cover to a former Prime Minister as a statutory obligation, the concerned authorities felt the need to approach the Court for prior permission and not take an unilateral decision.
163. In the Division Bench decision of the Allahabad High Court reported in 1983 Cri.L.J. 866 (State of U.P. Vs. Deg Raj Singh), the Division Bench held as under in paragraphs 34 and 36:
*34. In the instant case both the accused viz. Surendra Singh and Ramesh Singh approached the Court of the learned Chief Judicial Magistrate in connection with their surrender application. The contemners in a high handed manner deprived the court to dispose of their surrender application and thus denied the Court the power to administer justice duly and impartially and it clearly amounted to a gross contempt of Court. Such act and conduct of the contemners clearly amounted to interference with the administration of justice in this case. The contemners never informed the Court about any warrant, etc. in their possession nor sought his permission before apprehension of Ramesh Singh and Surendra Singh and are not entitled to any protection by alleging that the aforesaid accused were local terrors and absconders and they were duty bound to arrest them despite the commission of contempt of Court. So they are held guilty of Section 2(c) of the Contempt of Courts Act, 1971.
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36. If apology is to dilute the gravity of the offence it should be voluntary, unconditional and indicative of remorse and contrition tendered at the earliest opportunity. In the instant case it has been found that the apology was offered by both the contemners while denying the act of contempt and was not sincere and so it was simply an empty formality. Such apology which is devoid of remorse could not counteract or palliate the mischief that had already been done.* (Emphasis added)
164. In the decision reported in 2007 (4) CHN 842 (Association for Protection of Democratic Rights Vs. State of West Bengal and Ors.) a Division Bench of the Calcutta High Court in a suo motu writ petition relating to the incident that took place at Nandhigram were the West Bengal police stated to have taken some action against the agitating farmers and other villagers, the Division Bench held that prima facie in a wholly indefensible manner innocent people were shot down by none other than the uniformed police officers. Dealing with the said situation in the suo motu writ petition, the Court formulated the following questions in paragraph 76 and observed as under in paragraph 77 and 78:
*76. The action of the police would, therefore, raise some very serious questions, viz.:
(a) Was it necessary to surround the area by three thousand strong police force ?
(b) Was the police action justified in virtually invading the villages ?
(c) Did the officers concerned have any jurisdiction to order the police to open fire indiscriminately without identifying the targets or the ring leaders in the huge crowd?
(d) The crowd was no large by its very nature only individuals at the front would have been the target of the bullets?
77. The fact situation has been depicted by the team of Advocates in their report. Mr.Mukherjee has made a reference to a diagram in the area where the police firing took place. He had reiterated time and again the pleadings in which it is categorically stated that the police firing that erupted on 14th of March, 2007 was in the nature of State sponsored terrorism. Furthermore, the report submitted by the doctors who visited the locality have actually shown the individuals who are responsible for rape, arson etc. In such circumstances, we are of the opinion that the learned Senior Counsel, Mr.Mukherjee, is justified in his submission that the High Court ought to exercise its power under Article 226/227 of the Constitution of India and issue necessary orders and directions to unearth the truth.
78. We are unable to accept the submission of the learned Advocate General that mere gathering of very large group of villagers would be so intimidating or awesome as to overawe the State or its authorities as required under Section 129 of the Cr.P.C. The very wide definition of *force* given in Section 349 of IPC, therefore, cannot be a justification for discriminate gun firing indulged in by the police, ostensibly disperse or control the crowd.*
The Division Bench went on to hold as under in paragraph 106, where the Division Bench referred to certain principles laid down by the Hon*ble Supreme Court in LLP.State Road Transport Case:
*106*..There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion**** (Emphasis added)
165. We also bestow our due consideration to the decisions placed before us by Dr.Rajeev Dhavan on the issue of contempt jurisdiction. In the decision reported in (1972) 1 SCC 651 (R.L.Kapur Vs. State of Madras) it has been held as under in paragraph 5:
*5. Article 215 declares that every High Court shall be a Court of record and shall have all powers of such a Court including the power to punish for contempt of itself. Whether Article 215 declares the power of the High Court already existing in it by reason of its being a Court of record, or whether the article confers the power as inherent in a Court of record, the jurisdiction is a special one, not arising or derived from the Contempt of Courts Act, 1952, and therefore, not within the purview of either the Penal Code or the Code of Criminal Procedure**..In any case, so far as contempt of the High Court itself is concerned, as distinguished from that of a Court subordinate to it, the Constitution vests these rights in every High Court, and so on Act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority.*
166. The learned senior counsel also referred to a decision reported in (1995) 2 SCC 584 (Vinay Chandra Mishra, In re v.) where in paragraph 45 the Hon*ble Supreme Court took the following view:
*45*..That jurisdiction is independent of the statutory law of contempt enacted by Parliament under Entry 77 of List I of Seventh Schedule of the Constitution. The jurisdiction of this Court under Article 129 is sui generis. The jurisdiction to take cognizance of the contempt as well as to award punishment for it being constitutional, it cannot be controlled by any statute.*
167. Dr.Rajeev Dhavan however made a fair statement that though in the decision of the Hon*ble Supreme Court reported in (1996) 11 SCC 93 (Executive Director, Tirumala Tirupathi Devasthanam Vs. D.Nagulu Naidu) it was observed that the Hon*ble Supreme Court or High Court does not have a carte blanche power to exercise whatever power it thinks fit, in the name of contempt of Court.
168. The learned senior counsel referred to an earlier decision of the Hon*ble Supreme Court reported in (1991) 4 SCC 406 (Delhi Judicial Service Association Vs. State of Gujarat), wherein, it has been stated that the Court of Justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are entrusted to its care, would be an anomaly which could not be permitted to exist in any civilized community Society.
169. The learned senior counsel also contended that the argument of the learned counsel for the petitioners that there is rigid rule whereby the judiciary is insulated with an iron like curtain, where it is wholly impermissible for the police to arrest any criminal or even its presence is overbroad submission and should not be accepted.
170. According to the learned senior counsel when based on Government of India guidelines considering the threat perception of the Supreme Court and the High Court in the Country, specified security arrangements was directed to be made and such security system was introduced to this Court on and from 29.01.2009, the presence of the police cannot be frowned upon and the action of the police in their genuine attempt to control the law and order situation cannot be found fault with. The learned senior counsel therefore contended that the police officers having come forward to express their unconditional apology for whatever happened on 19.02.2009 and in respect of the Commissioner of Police whose career growth by virtue of his personal excellence in the field of police administration, initiation of either disciplinary or contempt proceedings would seriously impinge upon/spoil his career and therefore this Court should not countenance the claim of the petitioners.
171. Having been fortunate enough to hear the enlightened and dispassionate submissions of Dr.Rajeev Dhavan and the anxious submissions made by Ms.R.Vaigai and other learned counsel representing the lawyers, we proceed to consider this question with utmost care and caution.
172. As rightly contended by Dr.Rajeev Dhavan, we do agree that there cannot be total immunity, as has been claimed on behalf of the petitioners from other wings of the State in particular by the police. The non-availability of any statutory or other regulations apart, we must state in the present day context the judiciary plays a pivotal role in rendering its yeomen service to the citizens of this country. Time and again, it is being repeatedly stated from every quarters that for every man*s redressal the last resort is the judiciary. De hors and despite several constraints and criticism, there can be no two opinion that even today the judiciary is the institution which commends high amount of reputation and respect from among the members of the society and the right thinking persons. The institution, which is rendering service to the common man, is looked upon by every one with high amount of confidence and hope that pitted against any onslaught or at extreme situation where one seeks succor, this institution has not failed to come for one*s rescue and take all endeavor to remedy the wrong or prevent an evil from taking place or redress the grievance to the extent to which one is entitled/possible and thus proved its existence all these years and thereby keeping its mettle high in everyone*s esteem and expectation.
173. If the scheme of the Constitutional provisions are looked into, the institution of the Parliament and the Legislative Assembly on the one hand and the other wing of the State namely the Executive including the Police force and armed forces are dealt with differently. Special privileges are accorded to the institution of Parliament and the Legislative Assembly. Under Article 105 of the Constitution, such principles have been spelt out in so far as the Houses of Parliament and all its members and the Committees thereof. Under Article 194 of the Constitution such privileges have been extended to the State Legislature, its members and Committees thereof. The services of those under the State are concerned, the same is dealt with under Chapter IV of Part XIV of the Constitution consisting of Articles 308 to 314.
174. As compared to such regulations contained in such Chapter in so far as the the services of the Courts, we find that under Chapter VI which contains Articles 233 to 237 of the Constitution of India, the whole of the regulatory measures on the subordinate courts are vested with the High Court apart from the power of superintendence over all Courts subordinate to it by the High Court under Article 227 of the Constitution. When we make a glimpse of the provisions contained under Article 124 relating to the establishment and constitution of the Supreme Court falling under Chapter IV and Articles 217 and 218 relating to the appointment and condition of office of a Judge of a High Court falling under Chapter V, the provisions have been couched in such a manner that the framers of the Constitution bestowed their utmost concern to ensure that the process of judicial institution is kept aloof from the reach of any other wing of the State and thereby ensure confidence in the minds of the common man that though the expenditure of the judiciary is also met from the State Exchequer but yet the wing of the judiciary would encompass any situation and any person or body when it comes to the question of rendering justice irrespective of caste, creed, colour or status.
175. Keeping the above lofty ideas which weighed with the constitutional framers, while providing a special status to the judiciary in the hierarchy of public service, we are convinced that any attempt from any quarters either deliberately or subvertly or negligently or recklessly or in any other allied manner to cause a dent to the institution should be seriously dealt with in order to ensure that the greatness of the institution is not undermined by any one to the detriment of the public at large. To put it differently, unless as pointed out by the Hon*ble Supreme Court in the decision reported in (1991) 4 SCC 406 (Delhi Judicial Service Association Vs. State of Gujarat), wherein, it has been stated with authority and confidence that the Court of Justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are entrusted to its care, in our considered opinion there would only be anarchy everywhere else in as much as it will be the starting point for shaking the insurmountable pillar of the institution providing scope for anybody else to attempt to play a dirty game with the institution by designing their own form of evil schemes.
176. Keeping the above perception in mind about the status of the institution and its obligation to the society at large, when we analyze the issue and questions posed before us, at the very outset we are constrained to state that what happened on 19.02.2009, was an extreme and extraordinary situation which calls for an extraordinary action. In fact that is the principle stated by the Hon*ble Supreme Court in the decision reported in (2003) 6 SCC 581 (T.K.Rangarajan Vs. Government of Tamil Nadu).
177. The enormity and extraordinary nature of the situation can be focused by listing out the following circumstances namely:
(i) The Head of the Council of Ministers of the State namely the Hon*ble the Chief Minister in his spontaneous response, forwarded a fax message to the then Hon*ble Acting Chief Justice on 19.02.2009, described the happening in the High Court as:
*Unprecedented violence has taken place*..*
He concluded the said fax message by saying*
**..I am expecting your valuable suggestions to contain this violence and to ensure justice is done and peace is restored. Though I am in the hospital, if you wish to see me, I will come and meet you even in an Ambulance.*
(ii) There was bloodshed inside the campus to a very large extent which the campus never ever witnessed from the date of its inception.
(iii) Such bloodshed was of the lawyers (mostly innocent), Staff members, some of the policemen as well as litigant public.
(iv) There were instances of lathi charge by the policemen who indulged in such lathi charge in an uncontrollable manner and as could be seen from the CD, such lathi charge was indiscriminate and was not in consonance with the manner in which it was set out in the Drill and Training Manual.
(v) The officers concerned who were responsible for ordering such lathi charge had absolutely no control over their own men.
(vi) In the process of such lathi charge, there was extensive damage caused to the vehicles numbering more than 100 both four wheelers and two wheelers as well as bicycles which was not permissible in law.
(vii) Physical injury was caused to a sitting Judge of this Court who attempted to prevent such incidents from taking place. The scene of attack of the learned Judge as displayed in the CD was extremely pathetic.
(viii) The policemen found in the process of lathi charge were seen entering into the buildings of the Court premises, which was totally unwarranted and impermissible.
(ix) There were even damages caused to the furnitures inside the Court Hall of the XII Judge, Court of Small Causes.
(x) Extensive damages were caused to the buildings of the City Civil Court, Small Causes Court including the High Court and to repair such damages, it costed not less than Rs.7,00,000/- for the Public Works Department.
(xi) The injuries sustained were severe and some of the injured sustained head injuries and the cost of treatment for all those injured persons was in the order of Rs.32,97,595/- and odd.
(xii) The charging policemen did not spare even a van which was meant for transporting the judicial officers, in spite of the fact that there was a clear indication on the side of the van where it was written *ePjpj;Jiw (Judiciary)*.
(xiii) Apart from Hon*ble Mr.Justice A.C.Arumugaperumal Adityan, though the Hon*ble Acting Chief Justice himself along with some of the Hon*ble Judges rushed to the starting point of the lathi charge, they were forced to withdraw since they were cautioned that the mood of the policemen was such that anything may happen even to the Hon*ble Judges.
(xiv) Though the solitary victim was Hon*ble Mr.Justice A.C.Arumugaperumal Adityan, while the Hon*ble Acting Chief Justice, Hon*ble Mr.Justice R.Sudhakar and Hon*ble Mr.Justice R.Regupathi had a narrow escape.
(xv) The charging policemen entered into the library section of the Law Association as well as Madras High Court Advocates Association and caused extensive damages to the Bookshelves as well as to the books kept therein.
(xvi) Some of the clippings disclose that even while taking the injured advocates to the ambulance before allowing them to enter into the ambulance van, severe beating was meted out to such injured advocates without any mercy.
(xvii) Though the severity of the situation indisputably commenced after 2.00 pm and ended by around 6.30 pm none of the concerned police officers namely the Commissioner of Police, Additional Commissioner of Police, jurisdictional Joint Commissioner of Police and jurisdictional Deputy Commissioner of Police either on their own or at the instance of the Hon*ble Acting Chief Justice were prepared to meet him and apprise him of the seriousness of the situation.
(xviii) the order dated 19.02.2009, passed by the Full Bench headed by the Hon*ble Acting Chief Justice himself, disclose that the High Court was totally unaware of the game plan of the police headed by the Commissioner of Police till a report was filed by the Commissioner of Police that too after repeated persistence on 18.03.2009.
(xix) The situation which developed after 12.00 noon was not a spontaneous one posing a threat perception for the police to act but was one which was developed and fuelled by the police themselves which went out of control and the consequence was a piquant situation in which the police themselves were placed.
(xx) The beating of lawyers was not restricted to the High Court campus alone, it was carried beyond the campus and the video clippings disclose that the policemen were chasing the lawyers in some of the streets opposite to the High Court premises on the northern side where many of the lawyers have got their own chambers.
(xxi) All the top officers namely the Chief Secretary, Home Secretary, Director General of Police, Additional Director General of Police and the Commissioner of Police assembled in the Acting Chief Justice Chambers where a Full Bench was constituted on 19.02.2009 at around 6.40 pm, that is, after the extensive damage was done to the personnel and the premises of the High Court.
(xxii) realizing the enormity of the situation, the team of top officials referred to above who were given a personal hearing by the Full Bench came forward to straight away agree for an enquiry of the whole incident by the CBI.
(xxiii) The injured advocates, staff and others numbering more than 130 were all given first aid in the Government Hospital and were later admitted in private hospitals for which the State had to shell out a sum of Rs.32,97,595/-.
(xxiv) Similarly for the damaged vehicles compensation to the tune of Rs.10,63,953/- has so far been disbursed through the High Court from the funds provided by the State Government.
(xxv) the aftermath of the incident on 19.02.2009, was still worse, in as much as, the High Court did not function on the next day i.e. on 20.02.2009 which was a Friday and also on 23.02.2009 and 24.02.2009, i.e. the following Monday and Tuesday.
(xxvi) Though the advocates who were on boycott from 29.01.2009 for the cause of Srilankan Tamils withdrew their boycott and started attending Courts on 19.02.2009, in the light of the occurrence on 19.02.2009, they continued their boycott subsequently also which could be brought to an end only on and from 23.03.2009.
(xxvii) City Civil Court and the Court of Small Causes as well as the subordinate Courts also did not work from 20.02.2009 upto 27.02.2009. Further the City Civil Court and the Court of Small Causes could resume their work only from 02.03.2009.
(xxviii) Because of the unprecedented occurrence on 19.02.2009, the animosity between the police and the advocates also got aggravated and consequently the policemen were reluctant to accompany the remand prisoners to the Court and consequently the Judicial Magistrate*s had to go to the concerned Jail or sub-jail to pass orders of remand. Such a situation was prevailing for more than a month.
(xxix) in and around the High Court campus since the lawyers were protesting against the action of the police, the normal traffic got disrupted on the NSC Bose Road and the public were put to great inconvenience.
(xxx) Such a situation also created grave tension till the advocates resumed their work on and from 23.03.2009.
(xxxi) on 19.02.2009, itself the B-4 Police Station located inside the High Court campus was set on fire and extensive damage was caused to its property.
(xxxii) on 20.02.2009, a vehicle belonging to the fire service was set on fire and the vehicle was completely burnt into ashes.
178. A consideration of the prevalence of the above circumstances cannot be treated in a light-hearted manner. In other words, by virtue of the unprecedented unsavory incident that occurred on 19.02.2009, the institution namely the Judiciary in the State of Tamil Nadu from the top to bottom was totally paralyzed for which whomsoever was responsible is bound to answer and face the necessary consequences. As stated by us earlier, the enormity of the situation was something extraordinary which cannot be dealt with lightly. We say so because the occurrence must be an eye opener for everyone both the lawyers as well as the police in future and under no circumstances, either this institution namely the Judiciary or any other constitutional machinery or for that matter other limbs of the State could afford to face such a situation by shifting the responsibilities or fault on somebody else or any group of persons. The Court will be failing in its duty if appropriate measures are not taken to protect its status, glory and dignity and thereby instil confidence in the minds of everyone that the Judiciary will uphold its authority and status at times when people cry for justice and it will not leave any stone unturned in order to achieve that goal.
179. With the above point of view in mind when we consider some of the decisions cited by the members of the bar we find that the decision reported in (2004) 5 SCC 26 (Daroga Singh Vs. B.K.Pandey) was more or less identical to the case on hand. That was also a case where for one single individual who was a policeman a group of policemen indulged in vandalism under the direct supervision of the higher officials which necessitated the Court to initiate appropriate contempt action and out of 26 police personnel who were issued with show cause notice for contempt, 18 of them were imposed with punishment which was also upheld by the Hon*ble Supreme Court. It will be sufficient to make a reference to the extracted part of that decision in the earlier part of this order.
180. While considering the submissions of Dr.Rajeev Dhavan that the police have got every authority to remain in the premises, that the immunity as has been provided to the Parliament and its members cannot be applied to the Courts and Judiciary are concerned, we do agree with the said submission of the learned senior counsel. But we have spelt out our own reasons as to why we were not in a position to accept his submission that threat perception of this Court warranted not only their mere presence but also indulging in certain serious actions such as lathi charge etc., in order to hold that no further direction need be necessary. With great respect to the learned senior counsel, we hold that the various factors which has weighed with this Court and referred to above constraints, this Court to hold that the action of the police who were under the command of four high level police officers namely the Commissioner of Police Mr.K.Radhakrishnan, Additional Commissioner of Police Mr.A.K.Viswanathan, jurisdictional Joint Commissioner of Police Mr.M.Ramasubramani and the jurisdictional Deputy Commissioner of Police Mr.Prem Anand Sinha are squarely responsible and consequently they are bound to answer to this Court as to why action for contempt should not be taken against them for having deranged the prestigious institution namely the Judiciary of the State by paralyzing its activities due to unprecedented and uncontrolled act of indiscriminate lathi charge and consequential extensive damages caused to men and material inside the High Court campus between 2.00 pm and 6.30 pm on 19.02.2009. The plea of Dr.Rajeev Dhavan that the act of the police was not intentionally done cannot therefore be accepted. Therefore, any amount of apology offered does not deserve any merit for acceptance. Question No.(vi) is thus answered as above.
QUESTION No.(v):-
181. Though one may feel what remains after the above order as against the police, we feel that as the highest Court of this State, some of the naked truth about the conduct of the lawyers also calls for reformation. We are fully conscious of the status of a lawyer in the society and by calling for a reformation, we do not mean any disrespect to the profession. With all the responsibilities instilled in this Court while at the same time being part of the legal fraternity, we will be failing in our duty if some of the factors which have developed in the recent past are not brought to light and the lawyer*s community is directed to focus their attention more towards their greater assistance in the implementation of law and service to the society instead of providing any scope for unscrupulous elements to take advantage of enormous wealth and strength of power inbuilt in the legal profession for achieving their unlawful objectives.
182. In this context, we are obliged to refer to the untrammeled submission of Mr.R.C.Paul Kanakaraj, learned counsel representing the lawyers and who is also the President of the Madras High Court Advocates Association, in the course of his submissions when he made it clear that their agitation which commenced on 21.01.2009, in the course of which whatever methods adopted by them was only for the cause of the Sri Lankan Tamil citizens who were treated harshly in the neighbouring country namely Sri Lanka. The learned counsel also submitted that whomsoever indulged in any other criminal activities against whom criminal cases were launched is not supported by the association of lawyers and the police will be at liberty to proceed against them in the manner known to law and the association or its members did not and will not support any such alleged criminal activities indulged in by any of the accused in those incidents.
183. While appreciating the fair statement made by the President of the Madras High Court Advocates Association, we are bound to point out that the abstaining of Courts by the lawyers for whatever reason it may be does not behove well. There are umpty number of various other methodologies by which without causing hurt to any one or without causing damage to any one and without disrupting the functioning of the Courts, the lawyers who belong to a noble profession can display their protest which would draw the attention of the concerned authorities with much more care and concern. It is not for this Court to suggest as to what those other peaceful methodology that can be resorted to.
184. At this juncture it will not be out of place to remind ourselves of the fact that the Father of our Nation the great Mahatma Gandhi, who fought for the Independence of this Country was himself a member of the legal fraternity. Every one of the other leaders namely Dr. Rajendra Prasad, Pandit Jawaharlal Nehru, Dr.Ambedkar, Dr.Rajaji, Dr.Jaykar, Alladi Krishnasamy Iyer and very many other great personalities who constituted the Constitution Assembly were all lawyers. In other words, the Magna Carta of this Country, namely the Constitution was framed by those great personalities who all belonged to the Lawyers community by exerting and toiling their mind, body and soul for nearly three long years i.e between 1947 and 1950 and that ultimately the Constitution was dedicated to the Nation on 26.01.1950.
185. It was for these reasons that the legal profession was always placed in a high esteem by every other member of this Society and such confidence is still reposed in this profession as it has now become a settled position that it is the lawyers who can lead this Country in every other pursuit, also by virtue of the wealth of knowledge and know-how, learnt and retained by them. When that be the credibility of the profession, the time has now come for everyone who is part of this institution namely the legal fraternity to stand up and question to thyself whether we are proceeding in the right direction. For the sake of immediate attention we also wish to list out certain statistics relating to boycott of Courts at the instance of the lawyers. The following are the details of boycott by lawyers in each district of Tamil Nadu during the years 2006, 2007, 2008 and 2009:
TOTAL NUMBER OF DAYS OF BOYCOTT BY LAWYERS
IN EACH DISTRICT IN TAMIL NADU DURING
THE YEARS 2006, 2007, 2008 & 2009
DETAILS FURNISHED BY THE PRINCIPAL DISTRICT JUDGES
1. COIMBATORE DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Coimbatore City
11
4
31
56
b)
Tiruppur
2
3
24
36
c)
Pollachi
5
7
28
36
d)
Udumalpet
4
3
28
36
e)
Valparai
5
4
6
36
f)
Mettupalayam
3
10
4
42
g)
Palladam
5
4
24
36
h)
Avinashi
4
4
28
36
2. CUDDALORE DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Cuddalore
14
13
40
8
b)
Panruti
20
30
75
18
c)
Chidambaram
20
20
14
7
d)
Neyveli
26
16
41
7
e)
Portonovo
9
25
19
17
f)
Tittangudi
7
9
26
17
g)
Katumannarkovil
1
43
7
3
h)
Virudhachalam
23
66
38
23
3. DHARMAPURI DISTRICT:
District Court constituted on 17.02.2008
PLACE
2008
2009 upto 31.08.09
a)
Dharmapuri
47
76
b)
Harur
25
46
c)
Pennagaram
27
13
d)
Pappireddypatti
15
17
e)
Palacode
12
5
4. DINDUGUL
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Dindugul
30
21
37
53
b)
Palani
36
55
-
19
c)
Kodaikanal
42
24
17
No Resolution Received by the District Court
d)
Nilakottai
16
53
25
62
e)
Vedasandur
19
33
31
29
f)
Natham
2
21
-
47
g)
Oddanchatram
-
-
24
21
5. ERODE DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Combined court building, Erode,
4
7
25
23
b)
Addl District Court, FTC IV, Bhavani
7
16
30
c)
Sub-Court, Bhavani
6
15
37
d)
I Addl District Munsif Court, Bhavani
8
15
30
e)
Judicial Magistrate, Bhavani
6
14
30
34
f)
Fast Track Court No.III, Gobi
6
3
51
g)
Sub-Court, Gobi
6
3
51
h)
District Munsif Court, Gobi
6
3
51
i)
Judicial Magistrate No.I, Gobi
6
3
51
j)
Judicial Magistrate No.II, Gobi
6
3
51
31
k)
Judicial Magistrate, Satyamangalam
3
4
8
21
l)
District Munsif Court, Kangeyam
4
4
1
20
m)
Fast Track Court No.III, Dharapuram
12
6
4
31
n)
Sub-Court, Dharapuram
12
6
4
31
o)
District Munsif Court, Perundurai
12
6
11
p)
DM-cum-JM, Perundurai
Nil
Nil
6
21
q)
DM-cum-JM, Kodumudi
8
22
5
28
6. KANCHEEPURAM DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Kancheepuram
38
8
8
Entire period from 01.01.09 to 31.08.09
b)
Pallipattu
2
-
-
-
c)
Tambaram
6
2
13
18
d)
Thirukalikundram
2
1
10
17
e)
Maduantakam
1
3
24
23
f)
Uthiramerur
1
5
3
13
g)
Alandur
1
5
4
21
h)
Chengalpattu
1
1
15
19
i)
Sriperumbudur
-
-
-
1
7. KANNIYAKUMARI DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Nagercoil
b)
Bhoothapandy
c)
Padmanabhapuram
d)
Eraniel
e)
Kuzhithurai
41
67
58
82
69
69
69
69
8. KARUR DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Karur
45
32
54
b)
Kulithalai
25
39
46
47
9. KRISHNAGIRI DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Krishnagiri
b)
Hosur
c)
Denkanikottai
d)
Uthangarai
e)
Pochampalli
53
82
36
22
27
26
23
24
10. MADRAS DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
MADRAS
NIL
8
8
32
11. MADURAI DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
Madurai
58
61
47
44
12. NAGAPATTINAM DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Nagapattinam
10
5
18
18
b)
Mayiladuthurai
15
9
29
23
c)
Sirkali
11
9
18
24
d)
Thiruvarur
3
3
8
30
e)
Thiruthuraipoondi
6
6
13
14
f)
Mannargudi
6
5
24
16
g)
Nannilam
12
5
12
34
h)
Vedaranyam
-
-
2
5
13. NAMAKKAL DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Namakkal
b)
Tiruchengode
c)
Rasipuram
d)
Paramathy
23
66
82
39
43
38
44
14. NILGIRI DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Ooctacamund
45
50
64
b)
Gudalur
3
19
9
c)
Coonoor
2
4
NIL
d)
Kothagiri
Nil
3
Nil
52
15. PERAMBALUR DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Perambalur
b)
Ariyalur
c)
Jayankondam
27
3
87
51
39
37
16. PUDUCHERRY DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Puducherry
19
30
70
b)
Karaikal
21
20
48 =
c)
Mahe
-
-
-
d)
Yanam
5
2
-
47
17. PUDUKOTTAI DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
Pudukottai
31
46
68
25
18. RAMANATHAPURAM DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Ramanathapuram
52
68
45
b)
Parmakudi
42
55
44
c)
Mudukalathur
64
55
38
d)
Kamuthi
49
29
46
e)
Thiruvadanai
23
40
33
f)
Rameswaram
69
55
33
46
19. SALEM DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Salem
b)
Athur
c)
Sankagiri
d)
Mettur
16
25
19
41
41
43
52
20. SIVAGANGAI DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
District Court, Sivagangai
61
46
59
b)
CJM Court, Sivagangai
61
46
59
c)
Sub Court, Sivagangai
61
46
59
d)
DT. Munsif Court Sivagangai
61
46
59
e)
JM Court No.I, Sivagangai
61
46
59
f)
JM Court No.II, Sivagangai
61
46
59
38
g)
Sub Court, Devakottai
40
19
41
h)
DT. Munsif Court, Devakottai
40
19
41
i)
JM Court, Devakottai
40
19
41
44
j)
PDM Cum JM Court, Karaikudi
50
50
35
40
k)
Addl.DM Court, Manamadurai
50
50
35
l)
PDM cum DM Court, Manamadurai
40
30
46
m)
Addl. DM cum JM Court, Manamadurai
40
30
46
48
n)
DM cum JM Court, Tirupathur
25
11
42
38
o)
DM cum JM Court, Illyangudi
20
49
24
42
21. THANJAVUR DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
Thanjavur
34
34
39
46
22. THENI DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Theni
46
20
44
26
b)
Periyakulam
49
20
94
26
c)
Uthamapalayam
27
15
66
22
d)
Bodinayackanur
35
61
43
30
e)
Andipatti
54
32
43
33
23. TIRUCHIRAPALLI DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Tiruchirapalli
b)
Manapparai
c)
Thuraiyur
d)
Musiri
e)
Lalgudi
11
16
42
63
36
35
41
83
24. THOOTHUKUDI DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Thoothukudi
41
47
61
40
b)
Kovilpatti
35
51
50
68
c)
Srivaikuntam
61
23
63
41
d)
Sathankulam
44
51
61
45
e)
Tiruchendur
16
23
78
39
f)
Vilathikulam
36
40
60
42
25. TIRUNELVELI DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Tirunelveli
37
7
45
55
e)
Ambasamudram
35
34
54
80
b)
Cheramahadevi
25
16
30
75
c)
Tenkasi
21
52
38
42
d)
Shencottah
20
44
31
44
f)
Sankarankovil
28
38
54
48
g)
Sivagiri
19
37
54
47
h)
Nanguneri
28
33
31
50
i)
Valliyoor
43
59
35
66
26. TIRUVALLUR DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Tiruvallur
1+3
13
56
45
b)
Poonamallee
1+8
8
12
1
c)
Ponneri
1
4
2
2
d)
Thiruvottriyur
Nil
2
7
23
e)
Tiruttani
1
31
4
16
27. THIRUVANNAMALAI DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Thiruvannamalai
16
25
29
23
b)
Polur
3
-
28
22
c)
Cheyyar
6
3
28
21
d)
Arni
3
17
21
12
e)
Chengam
3
7
28
32
f)
Vandavasi
22
23
34
31
28. TIRUVARUR DISTRICT:
District Court constituted on 20.09.2008
PLACE
2008
2009 upto 31.08.09
a)
Tiruvarur
4
30
b)
Mannargudi
5
16
c)
Nannilam
11
34
29. VELLORE DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Vellore
50
39
50
43
b)
Arcot
-
-
39
40
c)
Wallajah
-
39
32
37
d)
Ranipet
33
33
26
40
e)
Solinghur
51
59
33
5
f)
Tirupattur
52
21
34
48
g)
Ambur
19
10
13
35 1/2
g)
Vaniyambadi
71
41
18
33
i)
Arakkonam
3
39
52
4
j)
Gudiyatham
64
52
79
40
30. VILLUPURAM DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Villupuram
b)
Tindivanam
c)
Gingee
d)
Kallakurichi
e)
Ulundurpet
f)
Vanur
g)
Tirukoilur
h)
Sankarapuram
25
42
68
44
53
53
39
32
29
21
5
31. VIRUDHUNAGAR DISTRICT:
PLACE
2006
2007
2008
2009 upto 31.08.09
a)
Virudhunagar
38
59
23
b)
Srivilluputhur
25
25
45
c)
Rajapalayam
12
5
8
d)
Sivakasi
31
48
38
e)
Sattur
51
59
48
f)
Aruppukottai
44
25
39
62
TOTAL NUMBER OF DAYS OF BOYCOTT BY LAWYERS IN
THE PRINCIPAL SEAT OF MADRAS HIGH COURT
& MADURAI BENCH OF MADRAS HIGH COURT
DURING THE YEARS 2006, 2007, 2008 & 2009.
PLACE
2006
2007
2008
2009 upto 31.08.09
Madras High Court
Particulars not available
35
Madurai Bench of Madras High Court
Particulars not available
37
Boycott Particulars received from the
Madras High Court Advocates' Association
for the year 2009
Sl.No
Date
Reason
No. of days
1
29.01.2009 to 09.02.2009
Condemning the Sri Lankan Government perpetrating genocide against Tamilians in Sri Lanka.
8
2
11.02.2009 to 12.02.2009
After one day's work, MHAA continued the boycott
2
3
17.02.2009 to 23.03.2009
Opposing the amendments made to Cr.P.C. including the 19.02.2009 clash betwen the police and the advocates.
23
4
'06.07.2009
Condemning the Government of Tamil Nadu for not complying with the Hon'ble High Court's Order dated 18.03.2009 in respect of 19.02.2009 attach on lawyers.
1
5
31.07.2009
As per the call given by the Federation of District and Subordinate Courts Advocates Association and to take action against the officers who committed offence on 19.02.2009.
1
186. A cursory glance of the above particulars shows that very many man-days of the Courts were lost. Since there is hue and cry everywhere that delayed justice is denied justice, it is imperative that the boycott of Courts by lawyers is stopped once and for all.
187. In fact on days of boycott, when out of necessity some of the parties appear before us, however much, the Court exhibit its anxiety to go for the rescue and render justice, it should be stated that due to inexperience and over anxiety of the parties they are either not in a position to place the facts in full before the Court and thereby disable the Court to render full justice and in many cases, the parties because of their inability to express their grievance remain as silent sufferers.
188. In this context, the submission of the learned Advocate General that the image of the lawyers in the opinion of the common man is highly eroded though may appear to be bit harsh is the real fact which has to be accepted with a pinch of salt. There is no gain saying that as lawyers belong to a very high clan and as such entitled for certain privileges in the Society, while at the same time when they fail to fulfill the obligations arising out of such status which the lawyers community is obliged to reciprocatively display to the Society at large, the same would certainly gain an impression adverse to their interest. In this context, the further fact remains as to, of the whole lot of the lawyers how many of them are really interested in abstaining from Courts. Therefore, it is high time that the Associations take a very pragmatic approach and take a firm decision to resort to any other passive method by which they can exhibit their protest in a subtle way instead of resorting to Boycott of Courts.
189. Apart from resorting to boycott, in the recent past the situation has become so vulnerable that certain other personality in the Society wanted to take advantage of the lawyers unity to achieve their other goals. In fact in the decision reported in (2007) 2 MLJ 1 (Madras High Court Advocates Association Vs State of Tamil Nadu) the Division Bench of this Court has taken pains to analyze the various factors relating to boycott being resorted to by the members of the Bar where this Court has noted that because of such frequent agitation either at district level or at the state level they were being treated shabbily by the police in the Society. This Court also pointed out that as a sequel to the frequent boycott of Courts, the work in the Courts suffer to a very large extent and that it may even paralyze the functioning of the judiciary which will be totally against public interest. The Division Bench has expressed its anguish in the following words in paragraph 18 of its order:
*18. We are constrained to observe that while going through the norms fixed for the Subordinate Courts and when remarks have been received from many of the Subordinate Courts that the norms have not been able to be achieved because of the prolonged strike by the advocates. This is a serious issue and if it is allowed to proceed, it may even paralyse the functioning of the judiciary, which is not in public interest.* (Emphasis added)
The Division Bench ultimately though it fit to constitute a Committee at the State Level as stated in paragraph 22.1 of its order which reads as under:
*22.1. The lessons learnt from the agitations leading to the ordering of a Commission of Inquiry indicates certain things. One precious judicial time was wasted due to the lawyers agitations. The decision to go on Court boycott was rather emotional than based on reason, because both the Commissions found in all the three incidents referred to them were that the incidents complained of was either exaggerated or that the lawyers for whom the Bar went on strike were themselves were on the wrong. The other lesson was that the stake (sis State) was not responding to the issue of Court boycott with utmost seriousness and was procrastinating in finding a proper solution. In the ultimate analysis the issue arising out of the direct action of the Bar requires an urgent and appropriate intervention. The need of the hour is to evolve a suitable mechanism which can quickly find a solution to any unpleasant stand-off between the Bar and Police in future. Ultimately this alone will prevent a situation leading to catastrophy. Appointment of Commissions of Inquiry are not only time consuming but with enormous cost energies are wasted. Further, in a probe by an independent authority the Police is not the losers and they need not apprehend any partisan probe. In both Commissions, the report was balanced and the Commissioners found that in a surcharged atmosphere the truth was the casualty.*
Again in paragraph 23, the Division Bench issued certain directions as to how the working of the Committee should be made more purposeful which is as follows:
*23. It goes without saying that the constitution of the Committee is the need of the hour and the Court cannot afford to lose its precious judicial time due to the frequent Court boycotts indulged by the advocates and, therefore, we direct the State of Tamil Nadu (first respondent herein) to immediately issue the administrative G.O. constituting the Committee, in any event, within a period of two weeks* from the date of receipt of a copy of this order. In view of the constitution of the Committee with the highest dignitaries of the State, it is expected that the members of the Bar, respective Bar Associations including their Federations and the Tamil Nadu State Bar Council will hereafter maintain utmost restraint in giving a call for any Court boycott and as agreed to by them, despite any provocation. They are expected to approach the State Level Co-ordination Committee formed with a view to resolve any accusation made against the Police regarding their misbehaviour towards the members of the Bar and abide by the decision of the Committee in this regard.*
190. In an earlier decision of this Court reported in 1995 Cri.L.J. 1956 (In Re: Rajendran and others), the Division Bench held as under in paragraph 56 and 97:
*56. Mrs.Prabha Sridevan, President, Women Lawyers* Association, submitted that the after-noon incident had a close connection with the morning closure of gates Advocates as well as policemen, were important limbs, for the former were right protectors * while the latter were law enforcers. The tension, if any, between them must be comfortably resolved. Re-orientation programmes must be organized.
* * * * *
97. We are very clear and let us transmit a certain message. We are totally conscious, that we have dealt with the contemners, rather lightly, but that has been the outcome after serious and thought provoking process and the positive response of ours, to the fervent, sincere and responsible plea, backed up with purposeful panorama of a possible good ear ahead, made by learned senior counsel, learned Advocate General and the Presidents of various Associations of Advocates. Let not any one walk out of this Court Hall with an impression, that whatever be the gravity of the offence, one could always escape lightly. The instant untoward incident, has been analysed by all concerned, and the answer in unison was that let this episode serve as a sure foundation or eye opener for fostering of a better tomorrow, with an assurance that recurrence, if any, though chances may be bleak, will have to be gravely taken note of and appropriate punishment meted out.*
191. In this context it will be worthwhile to refer to some of the decisions of the Hon*ble Supreme Court reported in (2001) 1 SCC 118 (Ramon Services (P) Ltd. Vs. Subhash Kapoor), (2003) 2 SCC 45 (Harish Uppal (Ex-Capt.) Vs. Union of India) and (2006) 9 SCC 295 (Common Cause, A Registered Society Vs. Union of India).
192. The Hon*ble Supreme Court has extensively dealt with the various pit falls in the boycott resorted to by the Advocates and have held as under in paragraph 35 in the decision reported in (2003) 2 SCC 45 (Harish Uppal (Ex-Capt.) Vs. Union of India)
*35. In conclusion, it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of court premises banners and/or placards, wearing black or white or any colour armbands, peaceful protest marches outside and away from court premises, going on dharnas or relay fasts etc. It is held that lawyers holding vakalats on behalf of their clients cannot refuse to attend courts in pursuance of a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before advocates decide to absent themselves from court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all courts to go on with matters on their boards even in the absence of lawyers. In other words, courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a vakalat of a client, abstains from attending court due to a strike call, he shall be personally liable to pay costs which shall be in addition to damages which he might have to pay his client for loss suffered by him.* (Emphasis added)
193. The Hon*ble Supreme Court has held as under in paragraph 4 of the decision reported in (2006) 9 SCC 295 (Common Cause, A Registered Society Vs. Union of India)
*4. The Constitution Bench has, in Ex Capt. Harish Uppal case culled out the law in the following terms: (SCC pp.64 & 71-74, paras 20-21 & 34-36)
*20. Thus the law is already well settled. It is the duty of every advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that courts are under an obligation to hear and decide cases brought before them and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers, it would amount to scandalising the courts to undermine its authority and thereby the advocates will have committed contempt of court. Lawyers have known, at least since Mahabir Singh case that if they participate in a boycott or a strike, their action is ex facie bad in view of the declaration of law by this Court. A lawyer*s duty is to boldly ignore a call for strike or boycott of court(s). Lawyers have also known, at least since Ramon Services case, that the advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call.
21. It must also be remembered that an advocate is an officer of the court and enjoys special status in society. Advocates have obligations and duties to ensure smooth functioning of the court. They owe a duty to their clients. Strikes interfere with administration of justice. They cannot thus disrupt court proceedings and put interest of their clients in jeopardy.
*****
34. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practise in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of the Bar Councils. It would be concerning the dignity and orderly functioning of the courts. The right of the advocate to practise envelops a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in exercise of their disciplinary powers. The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. The power to frame such rules should not be confused with the right to practise law. While the Bar Council can exercise control over the latter, the courts are in control of the former. This distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empowers the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practise i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the court including inter alia rules as to persons practising before this Court. Similarly Section 34 of the Advocates Act empowers High Courts to frame rules, inter alia to lay down conditions on which an advocate shall be permitted to practise in courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an advocate to appear in a court. An advocate appears in a court subject to such conditions as are laid down by the court. It must be remembered that Section 30 has not been brought into force, and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in court will always remain with the court. Thus even then the right to appear in court will be subject to complying with conditions laid down by courts just as practice outside courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other.
35. In conclusion, it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of court premises banners and/or placards, wearing black or white or any colour armbands, peaceful protect marches outside and away from court premises, going on dharnas or relay fasts, etc. It is held that lawyers holding vakalats on behalf of their clients cannot refuse to attend courts in pursuance of a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, courts may ignore (turn a blind eye) to a protest, abstention from work for not more than one day. It is being clarified that it will be for the court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before advocates decide to absent themselves from court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all courts to go on with matters on their boards even in the absence of lawyers. In other words, courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a vakalat of a client, abstains from attending court due to a strike call, he shall be personally liable to pay costs which shall be in addition to damages which he might have to pay his client for loss suffered by him.
36. It is now hoped that with the above clarifications, there will be no strikes and/or calls for boycott. It is hoped that better sense will prevail and self-restraint will be exercised. The petitions stand disposed of accordingly.*
The Court also dealt with the role of Bar Councils on the following terms: (SCC pp. 66-68, paras 25-26)
*25. In the case of Supreme Court Bar Assn. v. Union of India it has been held that professional misconduct may also amount to contempt of court (para 21). It has further been held as follows: (SCC pp.444-46, paras 79-80)
*79. An advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for *professional misconduct*, on the basis of his having been found guilty of committing contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and take appropriate action against such an advocate. Under Article 144 of the Constitution *all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court*. The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act *in aid of the Supreme Court*. It must, whenever facts warrant, rise to the occasion and discharge its duties uninfluenced by the position of the contemnor advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemnor advocate to enable the State Bar Council to proceed in the manner prescribed by the Act and the rules framed thereunder. There is no justification to assume that the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the dignity of the courts and the majesty of law and prevent any interference in the administration of justice. Learned counsel for the parties present before us do not dispute and rightly so that whenever a court of record records its findings about the conduct of an advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the Bar Council concerned, appropriate action should be initiated by the Bar Council concerned in accordance with law with a view to maintain the dignity of the courts and to uphold the majesty of law and professional standards and etiquette. Nothing is more destructive of public confidence in the administration of justice than incivility, rudeness or disrespectful conduct on the part of a counsel towards the court or disregard by the court of the privileges of the Bar. In case the Bar Council, even after receiving *reference* from the Court, fails to take action against the advocate concerned, this Court might consider invoking its powers under Section 38 of the Act by sending for the record of the proceedings from the Bar Council and passing appropriate orders. Of course, the appellate powers under Section 38 would be available to this Court only and not to the High Courts. We, however, hope that such a situation would not arise.
80. In a given case it may be possible, for this Court or the High Court, to prevent the contemnor advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practise as an Advocate-on-Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practise as an advocate in other courts or tribunals.*
Thus a Constitution Bench of this Court has held that the Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of the Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct. This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and even Bar Associations can never consider or take seriously any requisition calling for a meeting to consider a call for a strike or a call for boycott. Such requisitions should be consigned to the place where they belong viz. the waste-paper basket. In case any Association calls for a strike or a call for boycott, the State Bar Council concerned and on its failure the Bar Council of India must immediately take disciplinary action against the advocates who give a call for strike and if the committee members permit calling of a meeting for such purpose, against the committee members. Further, it is the duty of every advocate to boldly ignore a call for strike or boycott.
26. It must also be noted that courts are not powerless or helpless. Section 38 of the Advocates Act provides that even in disciplinary matters the final Appellate Authority is the Supreme Court. Thus even if the Bar Councils do not rise to the occasion and perform their duties by taking disciplinary action on a complaint from a client against an advocate for non-appearance by reason of a call for strike or boycott, on an appeal the Supreme Court can and will. Apart from this, as set out in Ramon Services case every court now should and must mulct advocates who hold vakalats but still refrain from attending courts in pursuance of a strike call, with costs. Such costs would be in addition to the damages which the advocate may have to pay for the loss suffered by his client by reason of his non-appearance.*
Apart from reiterating the above law, we do not propose to take any further action. The contempt notices stand discharged.* (Emphasis added)
194. The Hon*ble Supreme Court has held as under in paragraphs 22, 23 and 25 in the decision reported in (2001) 1 SCC 118 (Ramon Services (P) Ltd. Vs. Subhash Kapoor)
*22. Generally strikes are antithesis of progress, prosperity and development. Strikes by the professionals including the advocates cannot be equated with strikes undertaken by the industrial workers in accordance with the statutory provisions. The services rendered by the advocates to their clients are regulated by a contract between the two besides statutory limitations, restrictions and guidelines incorporated in the Advocates Act, the rules made thereunder and rules of procedure adopted by the Supreme Court and the High Courts. Abstaining from the courts by the advocates, by and large, does not only affect the persons belonging to the legal profession but also hampers the process of justice sometimes urgently needed by the consumers of justice, the litigants. Legal profession is essentially a service-oriented profession. The relationship between the lawyer and his client is one of trust and confidence.
23. With the strike by the lawyers, the process of court intended to secure justice is obstructed which is unwarranted under the provisions of the Advocates Act. Law is no trade and briefs of the litigants not merchandise. This Court in Bar Council of Maharashtra v. M.V. Dabholkar placed on record its expectations from the Bar and observed: (SCC pp.301-02, para 24)
*24. We wish to put beyond cavil the new call to the lawyer in the economic order. In the days ahead, legal aid to the poor and the weak, public interest litigation and other rule-of-law responsibilities will demand a whole new range of responses from the Bar or organised social groups with lawyer members. Indeed, the hope of democracy is the dynamism of the new frontiersmen of the law in this developing area and what we have observed against solicitation and alleged profit-making vices are distant from such free service to the community in the jural sector as part of the profession*s tryst with the people of India.*
*****
25. This Court in Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadarangani while deprecating the decreasing trend of service element and increasing trend of commercialisation of legal profession, pointed out that it was for the Members of the Bar to act and take positive steps to remove such an impression before it is too late. By striking work, the lawyers fail in their contractual and professional duty to conduct the cases for which they are engaged and paid. In Common Cause, A Regd. Society v. Union of India it was observed: (SCC p. 558, para 1)
*Since litigants have a fundamental right to speedy justice as observed in Hussainara Khatoon (I) v. Home Secy., State of Bihar it is essential that cases must proceed when they appear on board and should not ordinarily be adjourned on account of the absence of the lawyers unless there are cogent reasons to do so. If cases get adjourned time and again due to cessation of work by lawyers it will in the end result in erosion of faith in the justice delivery system which will harm the image and dignity of the court as well.*
195. Taking a clue and guided by the above decisions we state that time has now come for this Court to put things straight and make the message loud and clear that hereafter under the guise of boycott of Courts no hindrance should be caused to the litigant public or the working of the Court.
196. As far as the guidelines issued by the Government of India for preserving the security of this institution is concerned as per the direction contained in the relevant letter No.VI.23014/79/2005-VS, dated 31.05.2007 and the subsequent order dated 17.11.2008 and the steps taken by the Madras High Court Security Committee revising the Security arrangement system as was implemented from 28.01.2009, should be restored forthwith.
197. The imposition of ban ordered by the Division Bench in the decision reported in (2007) 2 MLJ 1 (Madras High Court Advocates Association Vs State of Tamil Nadu) should be strictly enforced.
198. The ban imposed (W.P.No.7646 of 2006 dated 20.06.2006) for any one to hold meeting inside the High Court campus other than regular meetings of the Association or any special meetings in their association premises shall be strictly adhered and no political party affiliation shall be permitted inside the High Court campus and other Court premises throughout the State for holding any meeting or demonstration or any other form of agitation inside the premises.
199. In this context, the recent order of the Hon*ble Supreme Court in this case itself dated 26.02.2009, namely that the advocates should not cause any disturbance to the Court proceedings and should not shout slogans inside the Court premises as well as no meeting should be held in the Court premises without the permission of the Chief Justice except other meetings in their Association premises shall be implemented forthwith by the Registry.
200. Having expressed our grave concern of the litigant public and the emergent need of this institution to come up to the expectations of the public at large, we hold that by implementing the severe security measures approved by the Security Committee of this Court in the interest of the institution, the implementation of it will be unscrupulously followed and it will be the responsibility of the members of the Bar to extend their cooperation in its implementation. Question No.(v) is answered in the above terms.
201. As far as the various criminal cases listed out in between pages 167 and 243 of the Respondents Volume-I is concerned, if there is no other impediment by way of Court orders or otherwise there is no reason why the police should fail to prosecute those proceedings without any further delay.
202. Having thus answered the various questions posed for consideration and having regard to our consensual conclusion on various issues, we deem it appropriate to give our common conclusions and directions contained in paragraph Nos. 602 to 607.
* * * * *
R.BANUMATHI, J.
203. I had the benefit of going through the Order of my learned Brother Justice F.M.Ibrahim Kalifullah,J. I fully agree with the views of my learned Brother. While concurring with conclusions and directions, I wish to express my views on the various issues and contentious points raised.
204. In respect of unfortunate incident on 19.2.2009 in the High Court campus, on 19.2.2009 the Hon'ble Acting Chief Justice had passed suo-moto order which was taken up in W.P.No.3335/2009. W.P.Nos.3703, 3704, 3705 and 3910/2009 came to be filed by various Lawyers Association praying to initiate appropriate proceedings against those Officers responsible for the brutal attack on the Advocates in the High Court campus on 19.02.2009.
205. Since all the Writ Petitions and Crl.O.Ps. arise out of the same facts and the issue and question of law involved are one and the same, all the Writ Petitions and Crl.O.Ps. were taken up together and disposed by this Common Order. For the sake of convenience, the parties (particularly the Respondents) are referred to, as per their array in W.P.No.3705/2009.
206. Events prior to 19.02.2009:-
For quite some time, the lawyers practising in Madras High Court and the Subordinate Courts owing allegiance and sympathizing with the cause of Sri Lankan Tamils resorted to organising meetings and demonstrations in and around High Court premises. Condemning genocide of Tamils in Sri Lanka, lawyers decided to boycott the Courts from 29.01.2009 in support of innocent Tamil population in Sri Lanka. The function of the Courts were paralysed by the Advocates on strike and those Advocates who were discharging their professional duty were forced to come out of the Court Halls.
207. On 17.2.2009, Writ Appeal Nos.181 to 183/2009 relating to taking over of the administration of Chidambaram Natarajar Temple were listed for hearing in the Court of Justice P.K.Misra and K.Chandru, JJ. At about 10.00 A.M. Dr. Subramaniam Swamy, President of Janata Party who has been given 'Z' category protection by the Government came to Court Hall No.III and was waiting in the Court to argue his case to implead himself in the said pending Writ Appeals. At about 11.45 A.M., 20 Advocates, who were allegedly agitating in support of Sri Lankan Tamils came to the Court shouting slogans condemning the Central and State Governments and the Police. Shouting slogans against Dr. Subramaniam Swamy, the group of agitating lawyers attacked Dr. Subramaniam Swamy and also the Police who tried to intervene. The slogans shouted by the lawyers in Tamil were recorded by the Division Bench of this Court in its order as "Brahmin dog down down, and Rajiv Gandhi killer go away". The order further states that the crowd had shouted many other filthy slogans and such unruly behaviour continued for about 15 minutes despite warnings given by the learned Judges. The learned Judges directed the Registry to place the said order before the Hon'ble ACJ and also directed to forward a copy of order to the Hon'ble The Chief Justice of India.
208. Regarding the incident in Court Hall No.III, complaint was also lodged on 17.2.2009 with the Inspector of B4-High Court Police Station by Mr.Khader Moideen, Asst. Commr of Police who was also injured. After obtaining written concurrence from the Registrar-General of High Court [12th Respondent] on 18.2.2009, a case was registered in Crime No.13/2009 under Sec.147, 451, 355, 332, 506(ii) 294(b) and 153-A IPC.
209. On 18.2.2009, Advocate Gini Leo Immanuel who was an accused in Crime No.13/2009 on the file of B4-High Court Police Station registered in connection with the assault on Dr. Subramaniam Swamy on 17.2.2009 was arrested on 18.2.2009. He was produced before the George Town Court and remanded to judicial custody.
210. Occurrence on 19.2.2009:
Pleadings and Averments in Petitions:
On 19.2.2009 Dr. Subramaniam Swamy appeared in connection with the same Natarajar Temple case and also in another Court. Extensive security cover was given by the Police and personally supervised by the 10th Respondent- Mr.Viswanathan, Additional Commissioner of Police, Law and Order [Addl. CoP] and JCP (North) Mr.Ramasubramani and Dr. Subramaniam Swamy's visit passed off peacefully. After departure of Dr. Subramaniam Swamy, 11th Respondent, Joint Commissioner of Police [JCP] - Mr.Ramasubramani and Deputy Commissioner of Police (DCP), Flower Bazaar [12th respondent in W.P.No. 3910/2009] * Mr.Prem Anand Sinha and DCP, Puliyanthope (13th Respondent in W.P.No.3910/2009) - Mr.Panneerselvam and Police party went to B2-Esplanade Police Station for a debriefing and also to give instructions on the security measures to be taken during the next hearing date on 26.2.2009 when Dr. Subramaniam Swamy will again appear in the High Court. At about 12.00 noon Mr.Vijayendran, advocate went to B2-Esplanade Police Station asking for list of advocates shown as accused in Crime No.13/2009. At about 2.00 P.M., large number of Advocates including Advocates Tvl. Karuppan, Rajinikanth, Vijayendran, Pugazhenthi and Jayakumar went to B4-High Court Police station located inside the High Court campus [just near City Civil Court, Chennai] volunteering to surrender in Crime No.13/2009. They also shouted slogans demanding registration of case against Dr. Subramaniam Swamy as pre-condition to surrender.
211. On the instructions of DCP- Mr.Prem Anand Sinha, Mr.Sethuraman, Inspector of Police attached to B4-High Court Police Station, on the complaint given by Mr.Rajinikanth, Advocate registered a case in Crime No.14/2009 u/s.3(1)(x) SC/ST [Prevention of Atrocities Act] Act and under Sec.506(ii) IPC against Dr. Subramaniam Swamy and Radha Mohan and furnished copy of FIR to the Advocates. Around 2.18 * 2.30 P.M., crowd of Advocates shouted slogans demanding arrest of Dr. Subramaniam Swamy. After receiving copy of FIR, Advocates are said to have shouted slogans that Police should immediately arrest Dr. Subramaniam Swamy and Advocates refused to surrender.
212. Hearing those developments, on the direction from the 7th Respondent-CoP, 10th Respondent Mr.Viswanathan-Addl. CoP [L&O], Mr. Sandeep Rai Rathore-JCP [Central Zone] [9th Respondent in W.P.No.3910/2009], Mr.Sarangan-DCP, Kilpauk [11th Respondent in W.P.No.3910/2009] came to the High Court Police Station to arrest the Advocates present there so as to maintain Law and Order.
213. At about 3.00 P.M., Addl. CoP [L&O] and JCP [Central Zone], 2 Deputy Commissioner of Police, 9 Assistant Commissioner of Police, 11 Inspectors, 4 Sub-Inspector of Police and 90 TSP men (in all 118) came as an additional strength. Mr.Ramasubramani, JCP (North Zone) [11th Respondent] tried to speak to few of the lawyers for surrender but without result.
214. On seeing the Advocates gathering, 11th Respondent * JCP (North)-Mr.Ramasubramani instructed the police party to apprehend the Advocates involved in 17.2.2009 incident and at 3.45 P.M. few of them were apprehended and also those who obstructed the arrest were made to board into the Police van for effecting arrest. Even when the Advocates were arrested, the other Advocates have abused the Police and indulged in violent activities by throwing stones on the Policemen. The arrested Advocates were taken to Thousand Lights Police Station.
215. After the Advocates were arrested and taken, there were pelting of stones by both sides. According to the Police, after warnings and on seeing the continued violent activities, 10th Respondent -Addl. CoP (L&O) [Mr.Viswanathan] who was the senior most officer present in the spot consulted with other senior officers and took collective decision to declare the assembly as 'unlawful' and to disperse it. Further, according to the Police, even after such warnings, the unruly mob continued their violent activities. DCP-Mr.Prem Anand Sinha, ordered to fire teargas shells and accordingly teargas shells were fired. Police ordered lathicharge to disperse the unlawful assembly. Thereafter, there were continued stone pelting by both sides. Lawyers, litigant public, Police Officers and Justice Arumuga Perumal Adhityan who came to pacify both groups sustained injuries. It is alleged that at about 5.30 P.M., a mob of Advocates have set fire to the said Police Station. When fire tender vehicle was brought to douse the fire, the unruly mob of Advocates are said to have thrown stones on the fire tender vehicle. Since the violent activities continued, 7th Respondent-CoP after discussing with the other senior officers present in the spot ordered lathicharge again. Fire was extinguished. Regarding the incidents, Inspector of B2-Esplanade Police Station gave a report to the Assistant Commissioner of High Court Police Station and based on the report a case was registered in Crime No.15/2009 under Sec.147, 353, 332, 450, 436 and 307 IPC read with Sec.3(1)(x) of SC/ST [Prevention of Atrocities] Act and Sec.3(i) TNP(PDL) Act against the lawyers.
216. Having learnt about the grave situation, the ACJ remained in contact with the Officers, viz., Chief Secretary, Government of Tamil Nadu, Commissioner of Police, Chennai and Home Secretary. Bench comprising of ACJ held the sitting at 7.40 P.M. The First Bench directed the 7th Respondent-CoP and 11th Respondent-JCP [North] to file a report on the following issues:-
(a) " ...... under whose authority the Police entered the High Court premises to arrest certain accused from the High Court campus;
(b) at whose instance the order was issued for lathicharge by the police and swift action force;
(c) who are the Police Officers/Police Personnel responsible for the Police excess within the Court campus;
First Bench also directed the CBI to investigate into the incidents. First Bench also directed the State Government to file status report.
217. Three teams headed by Registrars were constituted to take videographs with regard to the damages caused within the High Court premises and also in the Court buildings. Committee of Judges was also constituted to report as to the damages caused in the premises.
218. Tense situation prevailed on 20th February 2009 and subsequently. On the administrative side, in order to restore the normal working condition and to safeguard the court properties and to enable collection of materials and evidence by the Investigating agency regarding the incidents that took place on 19th February 2009, Full Court has taken a decision that Principal Seat of Madras High Court and Madurai Bench of Madras High Court and all Subordinate Courts and Tribunals under the supervision of Madras High Court situated within the State of Tamil Nadu and Union Territory of Pondicherry to be closed on 20.2.2009, 23.2.2009 and 24.2.2009. In view of extensive damages caused, City Civil Court and Small Causes Court, Chennai remained closed till 27.2.2009 and re-opened only on 02.3.2009.
219. By the order dated 26.2.2009 in W.P.No.94/2009, the Hon'ble Supreme Court requested Mr. Justice B.N.Srikrishna, former Judge, Supreme Court of India to inquire into the incident which happened on 19th February 2009 and the terms of reference to the Committee to be given by the Hon'ble ACJ of Madras High Court. The Supreme Court inter alia issued direction to assess the damages caused to the vehicles as well as Court buildings/furnitures and directed the State Government to place a sum of Rs.25 lakhs at the disposal of Registrar-General for the immediate relief and repair work.
220. By the order dated 18.3.2009, Full Bench of this Court directed the State Government to initiate disciplinary proceedings against 10th Respondent * Mr.Viswanathan-Addl. CoP and 11th Respondent * Mr.Ramasubramani-JCP (North) as they were the persons who were in the helm of affairs under whose supervision the operation was carried on and that they should be placed under suspension. Aggrieved by the said Order, both the Officers approached the Supreme Court in S.L.P. (Civil) No.7540/2009. By the Order dated 14.7.2009, the matter was again sent back to this Court for giving an opportunity of being heard. After the matter was remanded to this Court, Mr.Viswanathan-Addl. CoP was represented by learned counsel Mr.V.Selvaraj, whereas Mr.Ramasubramani-JCP (North) was represented by Mr. P.N.Prakash. CoP and other Police officers were represented by the Senior Counsel Dr.Rajeev Dhavan. Mr.Sandeep Rai Rathore-JCP (Central) was represented by Senior Counsel Mr.I.Subramaniam.
221. By G.O.Ms.No.229 Public (Law & Order B) dated 09.3.2009, Mr.N.Sundaradevan, IAS, Principal Secretary/Commissioner of Revenue Administration, Chepauk, Chennai was appointed as One Man Commission to inquire into the Police action and fix responsibility for the alleged excesses committed during Law and Order incidents which occurred in the campus of High Court, Madras on 19.2.2009.
222. Averments in the counter-affidavits:-
Public and Rehabilitation Secretary Mr. P.Jothi Jagarajan [2nd Respondent] who is also holding additional charge of Secretary, Home Department [3rd Respondent] filed counter stating that the Police personnel, if found to be responsible for excesses committed would be suitably punished through departmental action based on the report of One Man Committee. The Secretary had also referred to various steps taken by the State Government to fix the responsibility and that Rs.61 lakhs was placed at the disposal of the Registrar-General to reimburse the medical expenses incurred by the Advocates and to pay compensation to the damages caused to their vehicles.
223. Terming it as a serious Law and Order problem, 7th Respondent-CoP [Mr.Radhakrishnan] filed counter denying averments that Police had deliberately violated the human rights of lawyers. CoP averred that Police had used only minimum force to chase away the Advocates and the Advocates relentlessly continued their unruly activities. The situation and circumstances were such that the Police had to resort to lathicharge; but for which, the life and safety of the public and the Policemen would have been in peril. CoP has further averred that it was the collective decision taken by the senior officers to lathicharge to bring the situation under control.
224. The then Addl. CoP Mr.Viswanathan [10th Respondent] filed counter stating that CoP informed him that arrest of lawyers was already cleared by the ACJ and obeying the orders of the CoP, the Officers present at the High Court Police Station have arrested the Advocates. It is further averred that he and other Police Officers wanted withdrawal of Police from the High Court campus and in view of the order of CoP, they remained inside the High Court campus. According to Mr.Viswanathan-Addl. CoP, the CoP himself reached B2-Esplanade Police Station at about 4.00 P.M. and at about 4.30 P.M., the CoP came to the High Court Police Station with additional reinforcement of Armed Police and only on the orders of CoP teargas shells was fired at 4.45 P.M. and it was followed by lathicharge.
225. In response to the counter-affidavit filed by Mr.Viswanathan-Addl. CoP, 7th Respondent * CoP [Mr.Radhakrishnan] filed reply counter-affidavit stating that there was no occasion for any apprehension since accused Advocates themselves contacted the concerned senior officers proposing to surrender. 7th Respondent * CoP denied that Addl. CoP had raised concern over arresting of those who wanted to surrender in connection with the incident in Court Hall No.III on 17.2.2009 when Dr. Subramaniam Swamy was attacked. CoP had also denied Mr.Viswanathan's averments that CoP arrived at the High Court Police Station at 4.30 P.M. with more than 100 Armed Police personnel and ordered teargas shells to be lobbed at 4.45 P.M. followed by lathicharge. According to CoP ordering lathicharge was the collective decision taken by him and other senior police officers present to handle the grave situation.
226. Referring to the happenings on 17.2.2009 and the meeting held by the ACJ on 18.2.2009, 11th Respondent Mr.Ramasubramani-JCP has filed counter stating that after safe passing of Dr. Subramaniam Swamy, the Police party assembled at B2 Police Station for debriefing. At that time Advocate Mr.Vijayendran came there asking list of Advocates shown as accused in Crime No.13/2009 of B4-High Court Police Station to enable them to surrender and because of turn of events, the Officers and men did not disperse but stayed back in B2-Esplanade Police Station waiting for the surrender of wanted Advocates. It is further averred that at around 2.00 P.M., Advocates Mr.R.Karuppan and Mr.Rajinikanth and others along with number of Advocates came to B4-High Court Police Station and those Advocates volunteered to surrender in connection with the incident in Court Hall No.III on 17.2.2009 and insisted for registration of case against Dr.Subramaniam Swamy. On receiving information, Mr.Ramasubramani - JCP (North) rushed to B4-High Court Police Station. Referring to registration of case in Crime No. 14/2009 u/s.3(1)(x) SC/ST [Prevention of Atrocities Act] Act and under Sec.506(ii) IPC against Dr. Subramaniam Swamy and Ms.Radha Mohan, JCP (North) has averred that Advocates involved in the occurrence on 17.2.2009 and others resisting the arrest were taken to custody and were taken to Thousand Lights Police Station. It is further averred that the situation was so tense, Mr.Prem Anand Sinha-DCP, Flower Bazaar Police Station declared the assembly as 'unlawful' and ordered lathicharge. It is further averred that the situation was so chaotic and he had no occasion to keep track of the exact time of arrival of CoP.
227. Mr.Prem Anand Sinha, jurisdictional DCP [12th Respondent in W.P.No.3910/2009] filed counter referring to the bandobust arrangements in connection with Dr. Subramaniam Swamy's appearance on 19.2.2009. It is averred that after safe passage of Dr. Subramaniam Swamy, all of them gathered in B2-Esplanade Police Station for debriefing. On hearing about the gathering of Advocates in B4-High Court Police Station, Mr.Ramasubramani-JCP (North) and jurisdictional DCP Mr.Prem Anand Sinha and other Officers went to B4-High Court Police Station. It is further averred that on the insistence from Advocate Mr.R.Karuppan and other Advocates, a case in Crime No.14/2009 was registered against Dr.Subramaniam Swamy under Sec.3(1) (x) SC/ST (Prevention of Atrocities) Act and under Sec.506(ii) IPC. It is further averred that thereafter the Advocates shouted slogans seeking for immediate arrest of Dr. Subramaniam Swamy. According to Mr.Prem Anand Sinha, at about 3.00 P.M., the Addl. CoP (L&O) and JCP (Central Zone), 2 DCPs, 9 ACs, 11 Inspectors, 4 Sub-Inspectors and 90 TSP men (in all 118) came as an additional strength. According to Mr. Prem Anand Sinha, on the orders of Addl. CoP (L&O), the gathering was declared as "unlawful assembly" and after so declaring, Mr. Prem Anand Sinha ordered to fire teargas shells. Since, lawyers continued with stone pelting, in consultation with the Addl. CoP and JCP (North), lathicharge was ordered. At 5.00 P.M, CoP came to the High Court premises and directed withdrawal of Police force and return to B2-Esplanade Police Station. It is further averred that at 5.30 P.M., two wheelers and B4-High Court Police Station were set on fire and there was further lathicharge.
228. Mr.Sandeep Rai Rathore-JCP (Central Zone) [9th Respondent in W.P.No.3910/2009] has filed counter stating that on the instructions of Addl. CoP (L&O), he came to the High Court premises at 3.00 * 3.15 P.M. Reiterating the averments in the counter-affidavit of Mr.Prem Anand Sinha-DCP, Mr.Sandeep Rai Rathore-JCP (Central Zone) has further averred that he is not the jurisdictional officer and not directly involved in the decision making and ordering lathicharge and therefore, he is not responsible.
229. Mr.Sarangan-DCP [11th Respondent in W.P.No.3910/2009] has filed counter-affidavit stating that he has sustained injuries on his left shoulder, fore-arm and chest.
230. The other Officers viz., Mr.Anup Jaiswal-Addl. DGP (Int); Mr.Sunil Kumar-Addl. CoP (Traffic); Mr.Gunaseelan-JCP (South Chennai); Mr.Panneerselvam-DCP; Mr.Anbu-DCP; Mr.Sridhar-DCP; Mr.Joshi Nirmal Kumar-DCP; Mr.Thirugnanam-DCP (Traffic-North) [Respondent No.4,7,10,13 to 17 in W.P.No.3910/2009 respectively] and Jayakodi, Inspector of Police, B2-Esplanade Police Station [3rd Respondent in W.P.No.3703/2009] have also filed counter-affidavits stating that to tackle the situation, it was necessary to use the minimum force to disperse mob of advocates involved in the violent activities. It is further averred that only on the orders of the superior officers, they went to the High Court premises. According to these officers, they are not the jurisdictional officers and not responsible for the incident.
231. CONTENTIONS OF LAWYERS
Contending that it was a pre-planned attack, Mr.S.Prabakaran, President, Tamil Nadu Advocates Association has submitted that when it was natural for the Advocates to assemble in the Court, there was no justification for terming the gathering as "unlawful assembly". He further contended that Police were chasing the Advocates and ransacked their offices at NSC Bose Road, Thambu Chetty street and other areas which would indicate that Police were venting their anger against the Advocates. Taking us through the individual affidavits and pointing out the contradictions thereon, he would further submit that in view of the discrepancy in the claims whether actual clearance was given by the Hon'ble ACJ, it is necessary for the Bench to issue notice to the then Hon'ble ACJ for clarifying the contradictions. Mr. S.Prabakaran further submitted that an 'invisible' hand directed the operation and the same 'invisible' hand is now protecting all the personnel involved in the violence from criminal prosecution. He would further submit that inspite of the injuries inflicted upon many Advocates, vehicles damaged and Court Halls were ransacked by the Police force, so far not even a single case has been registered against even one constable.
232. Submitting that act of lawyers cannot be equated with any other unruly mob, the learned counsel Ms. R.Vaigai made elaborate submissions inter alia raising the following contentions:-
Excess was committed by the Police personnel with impunity and the then CoP cannot avoid the responsibility;
Before accepting the alleged voluntary surrender, Police must have foreseen the consequences of deployment of force on 19.2.2009;
Police impelled by animosity against the lawyers mercilessly beaten them and rampaging Police ransacked the Court premises which disrupted functioning of the Court which would amount to criminal contempt of court;
In so far as initial reaction of lawyers, on seeing that their fellow lawyers being taken to custody, it was natural reaction on the part of the lawyers to protest. Gathering and any other natural reaction of lawyers cannot be termed as 'unlawful assembly' warranting deployment of more personnel and lathicharge.;
Procedure of Police Standing Order 703 to disperse the crowds was not followed;
Contrary to the stand of CoP, he was well present in the campus even around 4.30 P.M., the then CoP is to be squarely held responsible.
233. Ms. Vaigai further submitted that for deployment of Police force prior permission of Registrar-General ought to have been obtained and that the precincts of High Court is a protected area and that permission ought to have been obtained before arresting the lawyers. In support of her contention, Ms. Vaigai placed reliance upon (1980) 2 SCC 559 [Niranjan Singh and another v. Prabhakar Rajaram Kharote and others]; 1983 Crl LJ 1866 [State of UP v. Deg Raj Singh and others]; (1987) 3 SCC 434 [State of UP v. Niyamat and others]; (1994) 6 SCC 442 [Mohd. Aslam @ Bhure Acchan Rizvi v. UoI and others]; (1995) 3 SCC 757 [Dhananjay Sharma v. State of Haryana and others]; 1995 Supp (3) SCC 736 [Secretary, Hailakandi Bar Association v. State of Assam and another]; (1996) 4 SCC 742 [Punjab & Haryana High Court Bar Association v. State of Punjab and others]; (1997) 1 SCC 416 [D.K.Basu v. State of WB]; AIR 2000 Delhi 266 [Dr.B.L.Wadehra v. State (NCT of Delhi) and others]; (2000) 2 SCC 465 [Chairman, Railway Board and others v. Chandrima Das and others]; (2004) 5 SCC 26 [Daroga Singh and others v. B.K.Pandey]; 2004 (5) CTC 612 [Devan, formerly the Inspector of Police, Needamangalam Police Station, Needamangalam, Tiruvarur District] and (1996) 6 SCC 323 [Commissioner of Police, Delhi and another v. Registrar, Delhi High Court, New Delhi].
234. In her reply submissions, learned counsel Ms. Vaigai placed reliance upon 1992 Cri LJ 634 [State of Karnataka v. B.Padmanabha Beliya and others]; AIR 1956 Raj 179 [Rajasthan Bar Council v. Nathuram and another]; AIR 1966 SC 740 [Ram Manohar Lohia v. State of Bihar]; 1970 (3) SCC 746 [Madhu Limaye v. Sub Divisional Magistrate, Monghyr]; 1984 (3) SCC 14 [Vijay Narain Singh v. State of Bihar]; 2003 (7) SCC 749 [Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and another]; 2005 (10) SCC 97 [Union of India and another v. Chaya Ghoshal and another]; 2007 (2) MLJ 1 [Madras High Court Advocate Association v. State of Tamil Nadu]; 2007 (4) SCC 474 [Destruction of Public and Private Properties, In Re:]; 2007 (4) CHN 842 [Association for Protection of Democratic Rights v. State of West Bengal and others]; 2008 (4) MLJ 763 [Coimbatore Bar Association v. State of Tamil Nadu]; 2008 (5) SCC 89 [Pulin Das @ Panna Koch v. State of Assam]; 2009 Cri LJ 854 [Chairman, Bar Council of TN v. State of Tamil Nadu and others] and 1898 ILR MDS (21) 249 [Queen Empress v. Subba Naik].
235. Contending that Respondents have not answered the question raised by the Court under what authority Police entered the premises, Mr. R.C.Paul Kanagaraj, President, Madras High Court Advocates Association [MHAA] has submitted that when lawyers were forcibly taken to the custody, the other lawyers gathered to rescue the lawyers and such reaction and gathering of lawyers cannot be termed as 'unlawful assembly'. He would further submit that all the rules of Police Standing Orders to disperse the crowds was given a go bye and without following the procedure, lathicharge was ordered. Mr. R.C.Paul Kanagaraj would further contend that dispersal of gathering of lawyers by use of force was with a deliberation and violation of Sec.129 Cr.P.C. and the Police Standing Orders. He would further submit that the higher Police officials and also Police personnel are to be proceeded with for contempt of court for disrupting the Court activities and closure of High Court and other Courts in the premises for three days and six days respectively.
236. Senior Counsel Mr. R.Krishnamurthy, President Madras Bar Association for themselves and onbehalf of Women Lawyers' Association submitted that Police officers who ordered lathicharge should be identified and action should be taken against them and other higher officers should be collectively held responsible. Drawing our attention to the inconsistencies in the counter-affidavits, Mr. R.Krishnamurthy, learned Senior Counsel would submit that the counter-affidavits are contradictory to each other and the responsible Police officers ought to have come to the Court with clear averments. Questioning the propriety of Mr. N.Sundaradeven One Man Committee, learned Senior Counsel would further submit that Mr. N.Sundaradeven One Man Committee cannot be expected to be fair and that it would not reflect the correct statement and the One Man Committee might not deliberate upon the misdeeds of higher officials. In support of his contention learned Senior Counsel placed reliance upon 1980 (2) SCC 559 [Niranjan Singh and another v. Prabhakar Rajaram Kharote and others].
237. Mr. T.V.Ramanujam, learned Senior Counsel submitted that the Police attack on the lawyers was an onslaught upon the Institution and deterrent orders has to be passed against them.
238. Mr. N.G.R.Prasad, learned counsel has submitted that lawyers agitation on the Sri Lankan Tamils issue was causing embarrassment to the Government and, the attack on lawyers was not a 'Mere police excess' but was a 'State excess' violating human rights.
239. Mr. V.Raghavachari, learned counsel has submitted that law enforcing agencies have no right to arrest the lawyers within the High Court premises. He would further submit that Advocates are the Officers of the Court and any attack on the Advocates would amount to interference with the administration of justice. In support of his contention, Mr. V.Raghavachari placed reliance upon AIR 1954 Mad 249 [Public Prosecutor v. K.G.Sivaswamy and another]; 2007 (4) CHN 842 [Association for Protection of Democratic Rights v. State of WB and others]; 1996 Crl.LJ 1956 [In Re: Rajendran and others]; ILR (1992) 1 Delhi 498 [P.V.Kapoor and another v. UoI and another]; AIR 1999 Gujarat 316 [State of Gujarat v. Govindbhai Jakhubai and another]; AIR 2002 Jharkhand 47 [M/s.Gray Hound Transport Co., v. UoI and others]; AIR 1970 SC 2015 [E.M.Sankaran Namboodripad v. T.Narayanan Nambiar]; 1992(240 DRJ 221A [State v. J.P.Singh]; AIR 2002 SC 1375 [In Re: Arundhati Roy]; AIR 1964 Calcutta 572 [The State v. Debabrata Bandopadhyay, District Magistrate, Nadia and another]; 2001 SCC (Cri) 1048 [T.T.Antony v. State of Kerala and others]; AIR 2000 Delhi 266 [B.L.Wadehra v. State (NCT of Delhi) and others]; 2009 Crl.LJ 1677 [Court on its own motion v. State and others]; (1994) 4 SCC 260 [Joginder Kumar v. State of UP and others]; Queen Bench Division Vol.I (1875) 75 [Smith v. Cook]; 1970 Court of Appeal 114 [Morris and others v. Crown Office]; 1994 (6) SCC 205 [N.Nagendra Rao and Co., v. The State of Andhra Pradesh]; (2007) Queens Bench 399 [Regina (W) v. Commissioner of Police of the Metropolis and another] and MANU/DE/ 1477/ 2008 [Police Commissioner and others v. Yash Pal Sharma].
240. We have also heard Mr. R.Karuppan who filed affidavit and also made submissions regarding voluntary surrender of Advocates in connection with Crime No.13/2009 of B4-High Court Police Station under Sec.147, 451, 355, 332, 506(ii) 294(b) and 153-A IPC on the file of B4-High Court Police Station.
241. Onbehalf of the State expressing regret over the situation, Mr. P.S.Raman, learned Advocate-General has submitted that Government of Tamil Nadu has the highest regard to the Institution and that any Police Officer found guilty in the incident by One Man Commission would be strictly dealt with. The learned Advocate General submitted that if the Court finds anyone responsible for the incident on 19.2.2009, the State will take appropriate action against the concerned officers. Learned Advocate-General has taken us through the then existing security arrangements to the High Court. Learned Advocate-General has also enumerated the steps taken by the State Government and that pursuant to the orders of the Supreme Court, State Government has appointed One Man Committee. Learned Advocate-General has also submitted that Rs.61 lakhs was sanctioned by the Government and placed at the disposal of the Registrar-General for payment of compensation to the injured Advocates and for the damages caused to the vehicles and the Court buildings for repair. Elaborating upon various steps taken in protecting the Heritage building, learned Advocate-General interalia appealed to us to use this opportunity to build a "bridge" between the Bar and Police.
242. Taking us through the affidavits and contradicting averments in the common counter-affidavit, Mr.V.Selvaraj, learned counsel for Mr.Viswanathan, Addl CoP [10th Respondent] submitted that so far as Metropolitan cities are concerned, CoP is incharge of the same and only at the instance of CoP, Mr.Viswanathan [10th Respondent] came to the High Court campus. Taking us through the call log of the cellphones, learned counsel would further submit that CoP himself came to the riot area at about 4.45 P.M. with additional re-enforcement of Police, CoP cannot avoid responsibility by throwing blame upon other persons. Arguing onbehalf of Addl CoP, learned counsel further submitted that only between 3.50 * 4.30 P.M., Addl CoP was incharge and during which time, he did not declare any 'unlawful assembly' and while so, it was highly improper for the CoP to file report before the Court fixing the responsibility upon Addl CoP.
243. Onbehalf of JCP (North) Mr.M.Ramasubramani, expressing sincere apology over unsavoury incident on 19.2.2009, Mr.P.N.Prakash, learned counsel submitted that as jurisdictional JCP, he was present both in the morning and in the afternoon on 19.2.2009. It was submitted that because of the incident on 17.2.2009, there was a need for mobilising the Police force and the situation was volatile which necessitated mobilisation of force in the morning.
244. It was further argued that Dr.Subramaniam Swamy who is in 'Z' category has to appear the Court on 19.2.2009 and having regard to the happenings on 17.2.2009, Mr.Ramasubramani had taken bonafide decision in good faith to move the Police force which gathered in B2-Esplanade Police Station for debriefing. Placing reliance upon 1995 (II) LW Crl 723 (Rajendran & 23 others/contemnors/ Respondents/Police officers/ Advocates if Saidapet Bar) and that in view of the source of power under Sec.41 Cr.P.C., there was no bar for the Police to arrest the Advocates in the Court campus. Taking us through the Typed set of papers, learned counsel would submit that there is no consistent version regarding the time and therefore, the time stated in the order dated 19.2.2009 cannot be taken as conclusive.
245. Appearing onbehalf of Mr.Sandeep Rai Rathore, JCP (Central Zone) [9th Respondent in W.P.No.3910/2009], Mr.P.N.Swaminathan, learned counsel submitted that on the direction from the Addl. CoP [Mr.Viswanathan], Mr.Sandeep Rai Rathore, JCP (Central Zone) arrived in High Court at 3.00 * 3.15 P.M. and reported before the JCP (North). Learned counsel would further submit that Mr.Sandeep Rai Rathore was not a jurisdictional officer and no specific command was assigned to him and therefore, he cannot be held responsible for the incident on 19.2.2009. Learned counsel would further submit that Mr.Sandeep Rai Rathore was not part of decision making ordering lathicharge. Without prejudice to the above contentions, onbehalf of Mr.Sandeep Rai Rathore, an unconditional apology was also expressed for the incident on 19.2.2009.
246. Drawing our attention to long list of incidents of misbehaviour by the Advocates and number of Criminal cases registered against the Advocates, Dr.Rajeev Dhavan, learned Senior Counsel submitted that there was a serious threat perception which justified mobilisation of Police force. Learned Senior Counsel would further submit that the attack on Dr.Subramaniam Swamy on 17.2.2009 contributed to the threat perception and therefore, mobilisation of Police force was only a precautionary measure. Learned Senior Counsel made persuasive submissions interalia raising the following contentions:-
(i)Whether presence of Police on the Court premises was uninvited and what was the level of threat perception;
(ii)Difficult and complicated questions of facts are involved; reliability and acceptability of evidence and materials available cannot be gone into exercising jurisdiction under Article 226 of the Constitution of India;
(iii)Because of continuous boycott of Advocates and their defiant acts in the past, there was serious threat perception which necessitated use of reasonable force; Court cannot comprehend what would have been the anticipated threat;
(iv)Since Police officers are Civil Servants entitled to protection under Article 311 of Constitution, Court straightaway cannot order suspension/impose punishment without due process of law by initiation of disciplinary proceedings; rights available to the Officers for acting bonafide;
(v)Absolutely, there was no malafide intention or pre-planned attack to invoke contempt jurisdiction; and
(vi)Moulding relief * balance to be adopted and how the reliefs could be moulded, keeping in view of interest of both lawyers and Police.
247. Pitched battle of lawyers with Police in the Court premises on 19.2.2009 was the most unfortunate incident; a situation which should never happen in future anywhere. Lawyers and the Police are two wings of the law-enforcement machinery. They complement each other in the task of maintaining law and order. It is deplorable that their relationship has been strained to the extent of indulging in a pitched battle. The relationship between the lawyers and the police has never been particularly good. What happened in the High Court was the culmination of such long-standing differences. The gross impropriety committed by the police on the Court premises resulted indiscriminate attack on everyone * lawyers, litigants, staff and one High Court Judge.
248. An unbiased examination of facts would reveal that culture of boycott of Courts by the lawyers developed in the State in the recent past and provocation of handful of lawyers on 17.2.2009 and 19.2.2009 led to this unprecedented incident. Though, we are mainly concerned with the developments during and aftermath of 19.2.2009, at the outset, it is apposite to highlight the high standards fixed for the lawyers and decadence of values in the legal profession.
249. Legal profession * Necessity for maintaining high level of morality and standards:-
Because of the good work and services rendered by the professionals, they are accorded status and autonomy in the society. It is relevant to quote the following passage from the book Howard Gardner's Five Minds for the Future * Chapter 6 * The Ethical Mind * Page 128 [Published by Harvard Business School Press, Boston, Massachusetts]:
"We conceptualize a profession as a highly trained group of workers who perform an important service for society. In return for serving in an impartial manner and exercising prudent judgment under complex circumstances, professionals are accorded status and autonomy."
"Work may be good in the sense of being excellent in quality * in our terms, it is highly disciplined. Such work may be good in the sense of being responsible * it regularly takes into account its implications for the wider community within which it is situated. And such work may be good in the sense of feeling good * it is engaging and meaningful, and provides sustenance even under challenging conditions. ....."
250. In AIR 1993 SC 1535 : 1993 (2) SCC 562 [J.S.Jadhav v. Mustafa Haji Mohamed Yusuf], the Supreme Court observed that the legal profession is regarded to be a noble one. In the inaugural address at the Bar Council of India Seminar, Justice Sundara Aiyar, former Judge, Madras High Court spoke that the profession of an advocate has always been regarded as one of the noblest profession. [See AIR 1961 (15th April) Journal Section]. There is no profession/class which has done more to develop and defend the human rights.
251. It will be apposite to quote a passage from a celebrated decision of the Supreme Court in Sanjiv Datta's case (1995) 3 SCC 619 - "The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to are its honourable members. Although entry to the profession can be had by acquiring merely the qualification of technical competence, honour as a conduct both in and outside the court."
252. The legal profession is most honourable profession, with high traditions and with the potentialities for great good in the progress of orderely society and maintenance of law and order. Lawyers have been in the vanguard of a country's progress and have always zealously guarded human liberties and the rule of law. For an ambitious young man of keen intellect and capacity to work hard, the legal profession holds unlimited prizes. It gives him an insight into the character of his fellow-men, into all their weaknesses and all their strength, and an opportunity to do real good by helping in the proper administration of justice and maintenance of judicial standards.
253. The profession of the advocate is a permanent institution in the world's justice, coming down through the ages, and garnering traditions and wisdom from generation to generation for the edification of present and future ones. Client and counsellor, advocate, jury, and judge - their ways and their needs and their notions were known and studied in Athens, Rome, England and America. The world's business and its laws may change, but human nature's motives and foibles have formed a constant element. The psychology of a law suit is still the great problem for the lawyer; and Quintilian, Scarlett and Choate here come together on common ground [Passage quoted from Page No.6 of P.Ramanatha Aiyer's * Legal and Professional Ethics * Third Edition, 2003].
254. There is a nobility of purpose involved in the profession of the law. There is a chivalry of action. It may be called into play any day. It involves the idea that a man can stand forward and become the advocate of some person who cannot speak for himself, who will have the courage and boldness to defend liberty from an assault upon her citizens, who will have the strength of character to denounce a wrong and who after all will remember that while he owes a great duty to his profession, he is called upon to give a corresponding duty to his country [Passage quoted from Page No.12 of P.Ramanatha Aiyer's * Legal and Professional Ethics * Third Edition, 2003].
255. The American Tycoon Mr. IACOCCA who achieved fame as one of America's leading Captain of industry was asked to address a group of prominent lawyers. He said to his captive audience:
"As lawyers you are little more equal than the rest of us. You are trained to use the freedoms granted by the Constitution. We all have them, of course, but you know better than the rest of us how to use them. That is your job. Advocacy is your profession. And it is an hon'ble one. The Constitution might tell us that our rights are sacred, but some times they are not worth a dime unless people like you, skilled in the law, are able to push them and protect them for us". "In our democracy, the final judges will always be laymen like me, and all the millions like me, who do not read the Constitution regularly and who may not even understand everything it says. We are the judges of the effectiveness of the Constitution and the wisdom of the laws written under it and the integrity of the legal profession. There is a lawyer in the United States called Roger Bridges who is engaged in unearthing legal cases in which Abraham Lincoln appeared and argued * this ambitious research project undertaken by Bridges and his team is called the 'Lincoln Legals'. They came across Abraham Lincoln's notes for a law lecture in 1850. In it he said:
"Resolve to be honest at all events; and if in your judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation rather than one in the chosing of which you do, in advance, consent to be a knave." "
[Passage quoted from Gururaja Chari's Advocacy and Professional Ethics * Page No.644 of first Edition, Wadwa and Company].
256. As held by the Supreme Court in 1994 (2) LW 187 : (1994) 2 SCC 204 (State of U.P. and others v. U.P. State Law Officers Association and others), legal profession is essentially a service oriented profession. Lawyers should remember, that service is the keynote of profession and should not consider it as a mere means of livelihood. They have great responsibility to protect and promote the democratic institutions in the country by striving to uphold rule of law.
257. Lawyer an Officer of Court * Duties and responsibilities:-
The United States has somewhat dubious distinction of having world's largest population of lawyers. India comes second in having world's largest population of lawyers. No free nation can ignore or forget the judiciary as part of democracy.
258. Indian society is multifaceted, multi-racial, multi-religious, and multi-lingual. The greatness, glory and distinction of this Country lies in unity in diversity. The very fact that we are surviving as a democratic country having a Rule of Law and an independent judiciary itself is significant. The constitution might tell that our rights are sacred. But sometimes they are not worth a dime unless lawyers skilled in the law are able to push them and protect them for the citizen.
259. No free nation can ignore or forget the importance of Law of Judiciary. If the Rule of Law has been a success and is even progressing in this country, the lawyers and judges are to be credited for their contribution to what is Rule of Law.
260. The profession of law is a public institution and lawyer discharges his public duty in so far as he assists in the administration of justice. The preamble of the chapter on Standards of professional conduct and Etiquette prescribed by the Bar Council of India reads as follows:
"An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate."
261. It takes great intellectual gifts to make a great advocate. No man wins a height at a bar, without a struggle and without intellectual power. Here no deception is possible, as in other cases. Not like the clergyman with his ex parte case behind the pulpit; not like the physician with his prescription in the dark; the lawyer's work is done in the broad light of open day, confronted at every step by able opposition and argument, with the entire public looking on. To meet such a test requires the greatest and keenest powers. The vulgar notion of advocacy that sees nothing in it higher than an effort to 'before the jury' is a great mistake. Rather it is often the business of the true advocate to clear and dispel by the electric heat and lightning of his genius, the fog-bank that has already settled there [See from 60 Mich. Reports, Page 1, Eulogy on Hon. Chas Stuart, a great Advocate; May on Advocates cited in Donovan's skill in Trials, Page 145].
262. Genius indeed will leave its mark in whatever sphere it may move. But learning, industry and integrity or essential traits in the profession. Fidelity to the Court, fidelity to the client, fidelity to the claims of truth and honour: these are the matters comprised in the oath of office of a lawyer.
263. There are pitfalls and mantraps at every step, and the mere youth at the very outset of his career, needs often the prudence and self-denial, as well as the moral courage, which belong commonly to riper years. High moral principle is his only safe guide; the only torch to light his way amidst darkness and obstruction. [Passage quoted from Page No.12 of P.Ramanatha Aiyer's * Legal and Professional Ethics * Third Edition, 2003].
264. In (1995) 1 SCC 732 [Indian Council of Legal Aid and Advice v. Bar Council of India], Para (3) the Supreme Court held as follows:-
"3. ....... It is generally believed that members of the legal profession have certain social obligations. e.g. to render "pro bono publico" service to the poor and the underprivileged. Since the duty of a lawyer is to assist the Court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession."
265. Observing that the legal profession is a solemn and serious occupation, in (1995) 3 SCC 619 : 1995 AIR SCW 2203 [In Re: Sanjeev Datta], Para (20), the Supreme Court has stated as follows:-
"20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible."
266. On the Conduct of Lawyers:
As held by the Hon'ble Supreme Court in Ramon Services (P) Ltd. v. Subhash Kapoor (2001 1 SCC 118), persons belonging to the legal profession are concededly the elite of the society. The lawyers, who have been acknowledged as being sober, task-oriented, professionally-responsible stratum of the population, are further obliged to utilise their skills for socio-political modernisation of the country. The lawyers are a force for the preservance and strengthening of constitutional government as they are guardians of the modern legal system.
267. As soon as a lawyer is enrolled as an advocate, he is subject to:-
a) the professional code of advocates;
and
b) disciplinary proceedings for misconduct.
268. Section 35(1) of the Advocates Act reads as follows:
"35. Punishment of advocates for misconduct:- (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee".
It will be seen that the emphasis is on both the professional and other misconduct.
269. Likewise, the Bar Council of India Rules has laid down 'Rules governing Advocates, in part IV of the said Rules. In particular, Chapter II of that part lays down
"Standard of Professional Conduct and Etiquette"
The preamble of these Standards states:
"An Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the court, a privileged member in the community; and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned."
270. Dilution of Professional Standards:-
The moral decadence that has crept into society has not spared the advocates. It is important to underscore that being recognised as a member of a profession is not the same acting like a professional. Some lawyers fail to honour the central precepts and strictures of their of calling and nobility of profession. It must be remembered that advocate pursues the profession not only for his personal enrichment but primarily to help the court in adjudicating a dispute according to law. (Emphasis supplied) The law should not be stultified by sanctifying little omissions as fatal flaws. Some of the defects may be attributed to the lack of inservice training. We only wish that in future Leadership in Bar would endeavour to impart inservice training to new entrants.
271. The ever-growing numerical strength of the advocates and the ever-shrinking litigation scope have certainly had their impact. Mediocrity, indifference and incompetence on the part of the members of the profession can seriously vitiate the cause of justice and undermine public confidence in the system.
272. Dilution of professional standards and the consequent weakening of the administration of justice have reached disturbing proportions. Professional competence has been eroded to an alarming extent. A lack of professional discipline and poor standard of ethical conduct pervade the system. The effect is felt in the system and on its credibility among the people.
273. An increasing number of entrants are ill-equipped, poorly trained with little sense of social accountability. Considerations of professional competence have been jettisoned to an alarming extent, leading society to question the very ability of the profession to correct the distortions and to serve public interest. Ignorance of common man and depravity in the system have led to the unfair and indifferent delivery of legal service.
274. Expressing deep concern over the falling standards in the legal profession, Professor (Dr.) N.R.Madhava Menon, has emphasised need for meaningful reforms in the legal profession. We quote -
"With unprecedented changes induced by technology and globalisation, all professions are forced to re-think their methods of management and delivery of services. Accountability systems are being made more transparent and participatory with the object of controlling commercialisation and improving the quality of services. Even the code of ethics and methods of disciplining erring members are being reworked across professions. It is in this context that the Indian legal profession is to be looked at for seeking reforms."
[Article by Professor (Dr.) N.R.Madhava Menon, former Director of National Law School, National University of Juridical Sciences and National Judicial Academy - Reforming the legal profession:some ideas * Hindu dated 20th February 2008 -].
275. In his popular work "The World is Flat" Thomasfriedman has detailed on how the progress of globalisation has resulted in a 'flat playing field'. In the era of globalisation foreign law firms are making endeavours to make entry in India. Despite the resistance to their entry, we understand foreign law firms have tie-ups and associate offices in India with whom they continue to work. When everywhere there is competence and thriving to excel in professionalism, lawyers cannot afford to lag behind.
276. Lawyers should not forget that they have glorious traditions left behind them while the previous generations they have to maintain those traditions of love and service to the society. Advocates must have exemplary traits of sincerity of purpose. Re-appraisal of professional obligations, decency and decorum should be placed high on the agenda to check the debasement of advocacy. Bar Associations/Council's need to adopt strategies to improve the image of the profession. As a whole, lawyers need to elaborate Codes of Ethics even for their fundamental values remain the same. Lawyers need to take steps to raise their collective consciousness against unethical practices or violation of professional responsibility.
277. Boycott of Courts by Lawyers:-
It must be remembered that Advocate is an Officer of the Court. Lawyers have obligation and duties to ensure smooth functioning of the Court. They owe a duty towards their clients and Court and society at large. Strikes interfere with the administration of justice.
278. In Ex. Capt. Harish Uppal's case, Supreme Court held that by very nature of their calling to assist in the dispensation of justice, lawyers should not resort to strike. Observing that Advocates owe a duty towards clients, in AIR 2001 SC 207 [Ramon Services Pvt. Ltd. v. Subhash Kapoor and others] in Para (5), the Supreme Court held as follows:-
"5. ... When the advocate who was engaged by a party was on strike there is no obligation on the part of the Court either to wait or to adjourn the case on that account. Time and again this Court has said that an advocate has no right to stall the Court proceedings on the ground that advocates have decided to strike or to boycott the Courts or even boycott any particular Court. Vide U.P.Sales Tax Service Association v. Taxation Bar Association, Agra (1995) 5 SCC 716: (1995 AIR SCW 3759 : AIR 1996 SC 98 : 1995 All LJ 2052), K.John Koshy v. Dr. Tarakeshwar Prasad Shaw (1998) 8 SCC 624; Mahabir Prasad Singh v. Jacks Aviation (1999) 1 SCC 37 : (1998 AIR SCW 3806 : AIR 1999 SC 287); and Kolittumottil Razak v. State of Kerala (2000) 4 SCC 465.
279. While it is true that lawyers have contributed largely in the fields of human rights, environmental law, socio-economic rights, there are very few professions that have been criticised as legal profession. Of late, boycotting of Courts has become order of the day. Advocates strike and boycott the Courts at the slightest provocation overlooking the harm caused to the judicial system in general and the litigant public in particular and to themselves in the estimate of the general public.
280. Observing that striking lawyers failed in their contractual and professional duty and conduct, in AIR 2001 SC 207 [Ramon Services Pvt. Ltd., v. Subhash Kapoor and others], Para (26) the Supreme Court held as under:-
"26. Noting casual and indifferent attitude of some of the lawyers and expecting improvement in quality of service this Court in In Re : Sanjiv Datta, Deputy Secretary, Ministry of Information and Broadcasting, New Delhi (1995) 3 SCC 619 : (1995 AIR SCW 2203 : 1995 Cri LJ 2910) held (para 12 of AIR SCW and Cri LJ):
"Of late, we have been coming across several instances which can only be described as unfortunate both for the legal profession and the administration of justice. It becomes, therefore, our duty to bring it to the notice of the members of the profession that it is in their hands to improve the quality of the service they render both to the litigant-public and to the Courts, and to brighten their image in the society. Some members of the profession have been adopting perceptibly casual approach to the practice of the profession as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings * many time even illegible and without personal check and verification, the non-payment of Court-fees and process fees, the failure to remove office objections, the failure to take steps to serve the parties, et al. They do not realise the seriousness of these acts and omissions. They not only amount to the contempt of the Court but do positive disservice to the litigants and create embarrassing situation in the Court leading to avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of our judicial system.
The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the members of the profession to introspect and take the corrective steps in time and also spare the Courts the unpleasant duty. We say no more."
In Brahma Prakash Sharma v. State of U.P., 1953 SCR 1169 : (AIR 1954 SC 10 : 1954 Cri LJ 238) a Constitution Bench of this Court held that a resolution passed by the Bar Association expressing want of confidence in the judicial officers amounted to scandalising the Court to undermine its authority which amounted to contempt of Court. In Tarini Mohan Barari, Re : AIR 1923 Cal 212 the Full Bench of the High Court held that pleaders deliberately abstaining from attending the Court and taking part in a concerted movement to boycott the Court, was a course of conduct held not justified. The pleaders had duties and obligations to their clients in respect of matters entrusted to them which were pending in the Courts. They had duty and obligation to co-operate with the Court in the orderly administration of justice. Boycotting the Court was held to be high-handed and unjustified. In Pleader, Re : AIR 1924 Rangoon 320 a Division Bench of the High Court held that a pleader abstaining from appearing in the Court without obtaining his client's consent and leaving him undefended, amounted to unprofessional conduct. In U.P. Sales Tax Service Association v. Taxation Bar Association, Agra (1995) 5 SCC 716 : (1995 AIR SCW 3759 : AIR1996 SC 98 : 1995 All LJ 2052) this Court observed (paras 15 and 16 of AIR SCW, AIR and All LJ):
"It has been a frequent notice in the recent past to witness that advocates strike work and boycott the Courts at the slightest provocation overlooking the harm caused to the judicial system in general and the litigant public in particular and to themselves in the estimate of the general public. An advocate is an officer of the Court and enjoys a special status in the society. The workers in furtherance of collective bargaining organise strike as per the provisions of the Industrial Disputes Act as a last resort to compel the management to concede their legitimate demands. ......."
281. Question of lawyers going on strike has been the subject in number of decisions of the Supreme Court. Most of those decisions have been referred to in the decision of the Constitution Bench of Supreme Court in AIR 2003 SC 739 [Ex. Capt. Harish Uppal v. Union of India and another] in Paras (27) to (31), it has been held as follows:-
"27. In the case of B.L.Wadehra v. State (NCT of Delhi) and others reported in AIR (2000) Delhi 266, one of the questions was whether a direction should be issued to the lawyers to call off a strike. The Delhi High Court noted certain observations of this Court which are worth reproducing:
"In Indian Council of Legal Aid and Advice v. Bar Council of India, reported in (1995) 1 SCC 732 : (AIR 1995 SC 691), the Supreme Court observed thus:
"It is generally believed that members of the legal profession have certain social obligations. e.g. to render "pro bono publico" service to the poor and the underprivileged. Since the duty of a lawyer is to assist the Court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession."
............
The Delhi High Court then considered various other authorities of this Court, including some set out above, and concluded as follows:-
"30. In the light of the above-mentioned views expressed by the Supreme Court, lawyers have no right to strike i.e. to abstain from appearing in Court in cases in which they hold vakalat for the parties, even if it is in response to or in compliance with a decision of any association or body of lawyers. In our view, in exercise of the right to protest, a lawyer may refuse to accept new engagements and may even refuse to appear in a case in which he had already been engaged, if he has been duly discharged from the case. But so long as a lawyer holds the vakalat for his client and has not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a strike called by the Bar Association or any other body of lawyers. If he so abstains, he commits a professional misconduct, a breach of professional duty, a breach of contract and also a breach of trust and he will be liable to suffer all the consequences thereof. There is no fundamental right, either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a case in which he holds the vakalat for a party in that case. On the other hand a litigant has a fundamental right for speedy trial of his case, because, speedy trial, as held by the Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81 : (AIR 1979 SC 1360) is an integral and essential part of the fundamental right to life and liberty enshrined in article 21 of the Constitution. Strike by lawyers will infringe the above-mentioned fundamental right of the litigants and such infringement cannot be permitted. Assuming that the lawyers are trying to convey their feelings or sentiments and ideas through the strike in exercise of their fundamental right to freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution. We are of the view that the exercise of the right under Article 19(1)(a) will come to an end when such exercise threatens to infringe the fundamental right of another. Such a limitation is inherent in the exercise of the right under Article 19(1)(a). Hence the lawyers cannot go on strike infringing the fundamental right of the litigants for speedy trial. The right to practise any profession or to carry on any occupation guaranteed by Article 19(1)(g) may include the right to discontinue such profession or occupation but it will not include any right to abstain from appearing in Court while holding a vakalat in the case. Similarly, the exercise of the right to protest by the lawyers cannot be allowed to infract the litigant's fundamental right for speedy trial or to interfere with the administration of justice. The lawyer has a duty and obligation to co-operate with the Court in the orderly and pure administration of justice.
Members of the legal profession have certain social obligations also and the practice of law has a public utility flavour.
According to the Bar Council of India Rules, 1975 "an Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non-professional capacity, may still be improper for an Advocate". It is below the dignity, honour and status of the members of the noble profession of law to organize and participate in strike. It is unprofessional and unethical to do so. In view of the nobility and tradition of the legal profession, the status of the lawyer as an officer of the court and the fiduciary character of the relationship between a lawyer and his client and since strike interferes with the administration of justice and infringes the fundamental right of litigants for speedy trial of their cases, strike by lawyers cannot be approved as an acceptable mode of protest, irrespective of the gravity of the provocation and the genuineness of the cause. Lawyers should adopt other modes of protest which will not interrupt or disrupt court proceedings or adversely affect the interest of the litigant. Thereby lawyers can also set an example to other sections of the society in the matter of protest and agitations.
31. Every Court has a solemn duty to proceed with the judicial business during Court hours and the Court is not obliged to adjourn a case because of a strike call. The Court is under an obligation to hear and decide cases brought before it and it cannot shirk that obligation on the ground that the advocates are on strike. If the counsel or/and the party does not appear, the necessary consequences contemplated in law should follow. The Court should not become privy to the strike by adjourning the case on the ground that lawyers are on strike. Even in the Common Cause case the Supreme Court had asked the members of the legal profession to be alive to the possibility of Judges refusing adjournments merely on the ground of there being a strike call and insisting on proceeding with the cases. Strike infringes the litigant's fundamental right for speedy trial and the Court cannot remain a mute spectator or throw up its hands in helplessness on the face of such continued violation of the fundamental right.
32. Either in the name of a strike or otherwise, no lawyer has any right to obstruct or prevent another lawyer from discharging his professional duty of appearing in Court. In any one does it, he commits a criminal offence and interferes with the administration of justice and commits contempt of Court and he is liable to be proceeded against on all these counts.
33. In the light of the above discussion we are of the view that the present strike by lawyers is illegal and unethical. Whatever might have been the compelling circumstances earlier, now there is absolutely no justification for the continuance of the strike in view of the appointment of the Commission of Inquiry and the directions being issued in this case."
28. In our view the conclusions reached are absolutely correct and the same need to be and are hereby approved.
29. Thereafter in the case of Ramon Services Pvt. Ltd. v. Subhash Kapoor reported in (2001) 1 SCC 118 = 2001 -1 -L.W. 61, the question was whether a litigant should suffer a penalty because his advocate had boycotted the Court pursuant to a strike call made by the Association of which the advocate was a member. In answer to this question it has been held that when an advocate engaged by a party is on strike there is no obligation on the part of the Court to either wait or adjourn the case on that account. It was held that this Court has time and again set out that an advocate has no right to stall court proceedings on the ground that they have decided to go on a strike. In this case it was noted that in Mahabir Prasad's case (supra), it has been held that strikes and boycotts are illegal. That the lawyers and the Bar understood that they could not resort to strikes is clear from statement of Senior Counsel Shri. Krishnamani which this Court recorded. The state is as follows:
"13. Shri Krishnamani, however, made the present position as unambiguously clear in the following words:
"Today, if a lawyer participates in a Bar Association's boycott of a particular court that is ex facie bad in view of the clear declaration of law by this Hon'ble Court. Now, even if there is boycott call, a lawyer can boldly ignore the same in view of the ruling of this Hon'ble Court in Mahabir Prasad Singh (1999) 1 SCC 37."
30. Thus the law is already well settled. It is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that Courts are under an obligation to hear and decide cases brought before it and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of the Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers it would amount to scandalising the Courts to undermine its authority and thereby the Advocates will have committed contempt of Court. Lawyers have known, at least since Mahabir Singh's case (supra) that if they participate in a boycott or a strike, their action is ex-facie bad in view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also known, at least since Roman Services' case, that the Advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call.
31. It must also be remembered that an Advocate is an officer of the Court and enjoys special status in society. Advocates have obligations and duties to ensure smooth functioning of the Court. They owe a duty to their client. Strikes interfere with administration of justice. They cannot thus disrupt Court proceedings and put interest of their clients in jeopardy. ......"
282. Despite such positive direction by the Supreme Court, in the State of Tamil Nadu, there are any number of lawyers' strike and boycott of Courts. Not a single day passes without strike by lawyers in some part of the State. We have lost very many Court working hours as seen from the number of days of boycott of various Courts in the State of Tamil Nadu and Pondicherry from 2006 till 31.8.2009. The number of days of boycott of Courts is really shocking. It may be noticed that there is an increasing trend of strike by lawyers and more Court working hours are lost because of lawyers strike.
283. At this juncture, it is apposite to refer the following passage of Shri P.P.Rao, Senior Advocate * Strikes by Professionals, extracted in Gururaja Chari's Advocacy and Professional Ethics * First Edition, 2000 [page 553]:
"A strike is an extreme form of protest. It loses its efficiency if it is resorted to frequently. During the struggle for Independence Mahatma Gandhi gave a call to boycott the British rule and many lawyers responded by giving up their lucrative practice and joining the freedom movement. Is it wise to use this weapon in free India over relatively insignificant issues? No every provocation by the police or the Government warrants a strike, there are strikes and strikes. In the year 1986 when Mr. Justice T.P.S. Chawla, the senior most Judge was not appointed as the Chief Justice of the Delhi High Court although he was entitled to the office even according to the declared policy of the Government, the entire Bar in Delhi went on strike. The Supreme Court Bar too joined the strike. It was successful. The Government had to yield to the demand, as the cause was just and had wide public support. The strike was over a basic issue affecting the independence of the judiciary which is a matter of overriding importance to the public at large. Can the same thing be said in respect of a strike over alteration of pecuniary jurisdiction of a High Court or setting up of a new Bench of a High Court or opening new District Courts?
284. So far as, Principal Bench of Madras High Court is concerned, there was vigorous boycott of Courts from 1st July 2004 protesting against formation of Madurai Bench of Madras High Court and also inclusion of certain Districts within the jurisdiction of Madurai Bench. There were clashes between two groups of Advocates and number of cases came to be registered from March 2004 to August 2004. There were also demonstration, protest, forming human chain, fast unto death demonstrations inside the Court campus and procession in the Court corridors. At that stage, the Code of Conduct for Advocates was notified. Protesting the notification of Code of Conduct, the Advocates in George Town/Egmore/Saidapet/Tiruvotriyur also joined in the protest. Lawyers' strike percolated to the Districts also. Later the Code of conduct was withdrawn. What we notice is that there is an ever increasing trend of boycott of Courts both in High Court as well as in the Districts.
285. Another disturbing feature is that the strikes are of long duration. It is a matter of common experience that during the strike periods, no one is allowed to appear before the Court. More often, there will be demonstrations and procession inside the Court premises particularly in the verandah. Of course, now the processions in the Court verandah have been stopped after the direction of the Supreme Court in S.L.P. (Civil) No.7540/2009 dated 14.7.2009 directing that there shall be no procession in the Court verandah.
286. Yet another disturbing feature of strikes is that they tend to divide the Bar and at times they lead to scuffle amongst lawyers. Democratic functioning of the Bar becomes impossible. Litigants are not the only sufferers. The non-affluent sections of the Bar too suffer silently. The Judges are handicapped in disposing of cases without the assistance of lawyers.
287. We must admit that judiciary has not strongly reacted the lawyers' boycott calls. Pointing out adopting of soft approach towards continuance of strikes in AIR 2001 SC 207 [Ramon Services Pvt. Ltd. v. Subhash Kapoor and others], Para (28), the Supreme Court observed as under:-
"28. Though a matter of regret, yet it is a fact, that the Courts in the country have been contributory to the continuance of the strikes on account of their action of sympathising with the Bar and failing to discharge their legal obligations obviously under the threat of public frenzy and harassment by the striking advocates. I find myself in agreement with the submission of Sh. M.N.Krishnamani, Senior Advocate that the Courts were sympathising with the Bar by not agreeing to dismiss the cases for default of appearance of the striking advocates. I have my reservations with the observations of Thomas, J. That the Courts had not been sympathising with the Bar during the strikes or boycotts. Some Courts might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the lis in the absence of the counsel but majority of the Courts in the country have been impliedly sympathisers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary. ......."
288. During boycott calls, most of the times no adverse orders would be passed and thereby a convenient ground was created for the lawyers again and again to give boycott call even on 'non-legal issue'. As a result, as noted earlier, Courts have lost number of working days. Hitherto, number of steps have been taken to ensure smooth/cordial relationship between the Bar and Police by forming committees at Districts level. After initial euphoria not much could be deliberated upon them and the committees are no longer functional.
289. Pendency of Cases:
There is staggering arrears of nearly three crore cases are pending at every stage in different Courts of India. In the country, Madras High Court has the second largest pendency of cases i.e. 4,62,009 [Source * Court News - Supreme Court of India * Vol.IV, Issue No.2 * April & June 2009]. Subordinate Courts in the State of Tamil Nadu have pendency of 10,57,141 [Source * Court News - Supreme Court of India * Vol.IV, Issue No.2 * April & June 2009]. Disposal of pending cases in a time bound manner and also dealing with newly filed cases is a daunting challenge before the judiciary.
290. Expressing concern as to how lawyer's boycott affected Subordinate Judiciary making it difficult in reaching the norms in 2007 2 MLJ page 1[Madras High Court Advocates' Association V. State of T.N] First bench of this Court has held as under:-
"18. We are constrained to observe that while going through the norms fixed for the Subordinate Courts and when remarks have been received from many of the Subordinate Courts that the norms have not been able to be achieved because of the prolonged strike by the advocates. This is a serious issue and if it is allowed to proceed, it may even paralyse the functioning of the judiciary, which is not in public interest."
291. Any judicial reform will have to go hand in hand with administrative reforms as well as co-operation from the Bar, otherwise speedy disposal of cases would surely then become a farce. We wish and hope that lawyers in the State of Tamil Nadu would rise up to the occasion rendering hands of co-operation and refraining from Courts' boycott.
292. Observing that lawyers have no right to strike and issuing directions to Courts for framing specific rules/Code of conduct of lawyers in Court, in Ex. Capt. Harish Uppal's case [AIR 2003 SC 739], the Supreme Court held as under:-
"44. One last thing which must be mentioned is that the right of appearance in Courts is till within the control and jurisdiction of Courts. Section 30 of the Advocates Act has not been brought into force and rightly so.
Control of conduct in Court can only be within the domain of Courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an Advocate) can practice in the Supreme Court and/or in the High Court and Courts subordinate thereto. Many Courts have framed rules in this behalf.
Such a rule would be valid and binding on all. Let all the Bar take note that unless self restraint is exercised, Courts may now have to consider framing specific rules debarring Advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the Courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and orderly functioning of the Courts.
..............
The Bar Councils cannot overrule such a regulation concerning the orderly conduct of Court proceedings. On the contrary it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the Court. Proceedings inside the Courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of Court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the Court and even corrode the majesty of it besides impairing the confidence of the public in the efficacy of the institution of the Courts. The power to frame such rules should not be confused with the right to practise law.
While the Bar Council can exercise control over the latter, the Courts are in control of the former. This distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empowers the Bar Council to frame rules laying down conditions subject to which an Advocate shall have a right to practise i.e. do all the other acts set out above.
However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the Court including inter-alia rules as to persons practising before this Court. Similarly Section 34 of the Advocates Act empowers High Courts to frame rules, inter-alia to lay down conditions on which an Advocate shall be permitted to practice in Courts.
Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an Advocate to appear in a Court. An Advocate appears in a Court subject to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a Court. Even if Section 30 were to be brought into force control of proceedings in Court will always remain with the Court.
Thus even then the right to appear in Court will be subject to complying with conditions laid down by Courts just as practice outside Courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other.
45. In conclusion it is held that lawyers have no right to do on strike or give a call for boycott, not even on a token strike.
The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protect marches outside and away from Court premises, going on dharnas or relay fasts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts' in pursuance to a call for strike or boycott.
All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rate cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Courts to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench.
Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocates decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him.
46. It is now hoped that with the above clarifications, there will be no strikes and/or calls for boycott. It is hoped that better sense will prevail and self restraint will be exercised. The Petitions stand disposed of accordingly." (underlining added by us for emphasis)
293. As held by the Supreme Court in Ramon Services Pvt. Ltd case "majority of the Courts in the country have been impliedly sympathisers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary. The Supreme Court further held that it is not too late even now for the Courts in the country to rise from the slumber and perform their duties without fear or favour particularly after the Judgment of the Supreme Court in Mahabir Singh's case [AIR 1999 SC 287]. Inaction will surely contribute to the erosion of ethics and values in the legal profession. The defaulting Courts may also be contributory to the contempt of Court.
294. Role of Bar Council and its Responsibilities:
The Advocates Act 1961 gave autonomy to a Bar Council of a State or Bar Council of India and Section 6(1) empowers them to make such action deemed necessary to set their house in order, to prevent fall in professional conduct and to punish the incorrigible as not befitting the noble profession apart from admission of the advocates on its roll. Section 6(1) (c) and rules made in that behalf. The members of the judiciary are drawn primarily and invariably from the Bar at different levels. The high moral, ethical and professional standards among the members of the Bar are preconditions even for high ethical standards of the Bench. Degeneration thereof inevitably has its eruption and tends to reflect the other side of the coin. The Bar Council, therefore, is enjoined by the Advocates Act to maintain high moral, ethical and professional standards which of late is far from satisfactory.
295. The Bar Council acts as the sentinel of professional code of conduct and is vitally interested in the rights and privileges of the advocates as well as the purity and dignity of the profession. The Bar Council acts as the custodian of the high traditions of the noble profession.
296. Observing that Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of courts and majesty of law and to prevent interference in the Administration of Justice, in the case of Supreme Court Bar Association v. Union of India reported in ( (1998) 4 SCC 408) Constitution Bench of the Hon'ble Supreme Court has held as follows:
"79. An advocate who is found guilty of Contempt of Court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for 'professional misconduct", on the basis of his having been found guilty of committing Contempt of Court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and take appropriate action against such an advocate. Under Article 144 of the Constitution all authorities, civil and judicial, in the territory of India shall act in the aid of the Supreme Court. The Bar council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to the act "in aid of the Supreme Court". It must, whenever facts warrant, rise to the occasion and discharge its duties uninfluenced by the position of the contemner advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemner advocate to enable the State Bar council to proceed in the manner prescribed by the Act and the Rules framed thereunder. There is no justification to assume that the Bar Council to proceed in the manner prescribed by the Act and the Rules framed thereunder. There is no justification to assume that the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the dignity of the Courts and the majesty of law and prevent any interference in the administration justice. Learned counsel for the parties present before us do not dispute and rightly so the whenever a Court of record records its findings about the conduct of an advocate while finding him guilty of committing Contempt of court and desires or refers the matter to be considered by the Bar Council concerned, appropriate action should be initiated by the Bar council concerned in accordance with law with a view to maintain the dignity of the Courts and to uphold the majesty of law and professional standards and etiquette. Nothing is more destructive of public confidence in the administration of justice than incivility, rudeness of disrespectful conduct on the part of a counsel towards the Court or disregard by the Court of the privileges of the Bar. In case the Bar Council, even after receiving "reference" from the Court, fails to take action against the advocate concerned, this Court might consider invoking its powers under Section 38 of the Act by sending for the record of the proceedings from the Bar Council and passing appropriate orders. Of course, the appellate powers under Section 38 would be available to this Court only and not to the High Courts. We, however, hope that such a situation would not arise.
80. In a given case it may be possible, for this Court of the High Court, to prevent the contemner advocate before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate on Record, this Court possesses jurisdiction, under the supreme Court Rules itself, to withdraw his privilege to practice as an Advocate on Record because that privilege is conferred by this court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practice as an advocate in other courts of Tribunals."
297. Reiterating roles and responsibilities of Bar Council, decision on the Ex.Capt. Harish Uppal's case the Hon'ble Supreme Court has held as under:
"35. ...... Thus a Constitution Bench of this Court has held that the Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of the Courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of the Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct. This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and eve Bar Associations can never consider or take seriously any requisition calling for a meeting to consider a call for a strike or a call for boycott. Such requisitions should be consigned to the place where they belong viz. the waste paper basket. In case any Association call for a strike or a call for boycott the concerned State Bar Council and on their failure the Bar Council of India must immediately take disciplinary action against the Advocates who give a call for strike and if the Committee Members permit calling of a meeting for such purpose against the Committee Members. Further it is the duty of every Advocate to bodily ignore a call for strike or boycott." (underlining added by us for emphasis).
We hope that Tamil Nadu State Bar Council would rise to the occasion to comply with directions of the Supreme Court in dealing with the conduct of advocates boycott calls and take serious view of the same.
298. In Ex. Capt. Harish Uppal's case directed the Constitution of Grievance Redressal Committees in the level of High Court and District Courts level to ventilate grievances:- (i) Local issues (ii) Issues relating to one section of the Bar and another section (iii) Issues involving dignity, integrity, independence of the Bar and Judiciary (iv) Legislation without consultation with the Bar Councils. (v) National issues and Regional issues affecting the Public at large/ the insensitivity of all concerned.
299. Expressing concern over prolonged strikes an account of rift between Police and Lawyers in W.P.No.24445/2006 reported in 2007 2 MLJ Page 1 [Madras High Court Advocates' Association v. The State of Tamil Nadu and others], First Bench of this Court proposed constitution of the State Level Co-ordination Committee to examine any complaint or illtreatment of any Advocate at the hands of the Police officials and to redress the grievance and thereby to maintain cordial relationship between Police and lawyers.
300. As directed by the First Bench, in G.O.Ms. No.1249 Home Police IX Department dated 28.12.2006 to maintain cordial relationship between the Police and lawyers, State Level Co-ordination Committee has been constituted. As per the G.O., composition of State Level Co-ordination Committee is as under:-
1. Two Hon'ble Judges of the High Court, ..... Chairperson/Member
Madras to be nominated by The Hon'ble
The Chief Justice. The Hon'ble Senior
Judge shall be the Chairperson and the
other Hon'ble Judges shall be the Member
2. The Advocate-General, Government of ..... Member
Tamil Nadu
3. The Chief Secretary, Government of ..... Member
Tamil Nadu
4. The Principal Secretary, Home Department, ..... Member
Government of Tamil Nadu
5. The Additional Director General of Police/ ..... Member
Inspector-General of Police (Law and Order)
6. The Chairman, Bar Council of Tamil Nadu ..... Member
7. The President, Madras High Court Advocates' ..... Member
Association
8. The Chairperson, Federation of District and ..... Member
Subordinate Courts' Bar Association of Tamil
Nadu and Pondicherry, 17 Law Chambers,
Sampath Nagar, Erode
Any accusation made against the Police regarding their misbehaviour towards members of Bar are to be brought to the notice of State Level Co-ordination committee to sort out disputes. We take this opportunity to reiterate the directions in W.P.No.24445/2006.
301. After the incident on 19.02.2009, public opinion is very much against lawyers. Lawyers need to dispel the impression that they are "Law Unto themselves". We fully endorse the submissions of learned Advocate General Mr.P.S.Raman that advocates should be 'model citizens' and lawyers must rise up to restore the glory and their public image. Mere saying that they would go by the rules may not be sufficient. On the other hand "Self conscious engagement" on the part of the lawyers individually and also collectively is required.
302. As observed by the Supreme Court in Ex. Capt. Harish Uppal's case, we hope that in future there will be no strikes and/or calls for boycott. It is hoped that better sense will prevail upon lawyers and self restraint will be exercised.
303. Lawyers' strike call from 29.01.2009:-
Madras High Court Advocates Association (MHAA) announced indefinite boycott of Courts in Tamil Nadu demanding an end to the war in Sri Lanka. Lawyers took out a rally shouting slogans inside the Court premises against genocide to Tamils in Sri Lanka. They stopped MTC Bus and took it to Kilpauk Medical College Hospital to pay homage to Muthukumar, who had committed self-immolation earlier in the day over the Sri Lankan war. They are alleged to have caused damage to the Bank of Ceylon, E.V.R. Periyar Salai, Kilpauk and also caused damage to the car belonging to the Bank Manager. In this regard, a case was registered in Veppery Police Station Cr.No.80/2009 under Section 143, 144, 149 & 336 IPC of Section 3 (1) of TNP(PDL) Act.
304. On 30.01.2009 a large group of lawyers entered into the Court Halls poohing Judges, dragged the Advocates including Government Law Officers present in the Court. During the period of boycott, Advocates shouted slogans, took out procession in the Corridors of Court Halls using Megaphone. Senior Advocate Mr. A.E.Chelliah, was pulled out from the First Court Hall and was man-handled by some Advocates in the presence of his wife, who is also an Advocate.
305. Dragging out of the learned Senior Counsel Mr. A.E.Chelliah from the Court was most unfortunate. The Advocates dared to enter Court Hall No.1 and dragged the Senior Advocate Mr.A.E.Chelliah and his wife just for the reason that they were arguing the case in the Court. In our considered view, it was clearly an attempt to interfere with the administration of justice. The Principle is that those who have duties to discharge in a Court of Justice are protected by the law and shielded by the law to discharge their duties. The advocates in turn have duty to protect the Courts and act in furtherance of administration of Justice.
306. The lawyers strike continued from 02.02.2009 to 09.02.2009. MHAA continued the boycott demanding end to the war in Sri Lanka. They took out procession in the High Court Corridors using Megaphones and also organised demonstrations and also conducted meetings inside and outside the Court premises. The Advocates who willingly participated in the Court proceedings were prevented from attending the Court by the striking lawyers.
307. On 04.02.2009, the striking Lawyers are said to have caused damage to several shops in Paris during the Bandh in support of the Sri Lankan Tamils. A complaint was also lodged by the owner of the shops. In this connection three cases were registered in B2-Esplanade Police Station in Crime No. 73/2009 u/s 147, 143, 188, 286 IPC r/w 3(1) of TNPPDL Act, Crime No.74/2009 u/s 147, 148, 341, 324, 307 and 506(ii) IPC r/w 3(1) of TNPPDL Act and Crime No.75/2009 u/s 147, 332, 353, 354 and 506(ii) IPC r/w 3(1) of TNPPDL Act.
308. At about 2.30 A.M. (05.02.2009) about 40 Advocates are said to have scaled over the compound wall of the High Court premises and damaged the temporary shelter put up in connection with security measures, Frisking Cubicle installed at the entrance of the High Court. In this connection a case was registered in B4-High Court Police Station Crime No.8/2009 u/s 147, 294(b), 427 506(ii) r/w 3(1) of TNPPDL Act. On 05.02.2009 forenoon, MHAA convened a meeting at the Library building and resolved to continue the boycott.
309. Some of the Advocates, who were involved in the occurrence were arrested. The arrested Advocates were taken to the quarters of the VII Metropolitan Magistrate, Saidapet in a police vehicle. It is alleged that number of offenders gathered and raised slogans against the Police which resulted in a scuffle between the Advocates and Police. To reduce the tension, the advocates were taken to Rajarathinam Stadium, Egmore and the Additional Metropolitan Magistrate had gone to the Stadium. Additional Metropolitan Magistrate remanded the advocates to judicial custody and immediately released them on bail on personal bonds.
310. The boycott continued till 09.02.2009. On 10.02.2009 advocates resumed the work. After one day's work, again on 11.02.2009 MHAA continued the boycott by taking out procession and raising slogans in the Court Corridors.
311. For days together lawyers have been boycotting the courts and taking out procession and demonstrations demanding that the Sri Lanka Government to announce cease fire operation against LTTE. Sri Lankan issue was of no direct concern to the legal fraternity which is clearly a political issue. Lawyers were responsible for the protests and demonstrations and raising slogans in the Court Corridor and preventing the advocates who wanted to attend the Court proceedings and thereby creating tense situation in the Court premises during the strike period.
312. In W.P.No.7646/2006, first Bench of this Court directed that no political activity is to take place within the High Court campus. In the said order, the Registrar-General and the concerned Asst. Commr. of Police were directed to remove all the political hoardings, cut-outs and advertisements inside the premises of the High Court or on the compound wall of the premises.
313. Order in W.P.No.7646/2006 dated 20.6.2006 reads as under:
"(1) The Registrar General, High Court, Madras and the concerned Assistant Commissioner of Police, High Court, Madras, are directed to ensure that no political activity of any manner including display of political cutouts, banners, posters or organizing dharnas and meetings or birthday celebration of any party leaders takes place within the premises of the High Court.
(2) The Registrar General and the concerned Assistant Commissioner of Police are directed to remove forthwith all the political hoardings, cutouts, advertisements, photographs etc, placed inside the premises of the High Court or on the compound wall of the premises.
(3) In case of any violation of the order of this Court, the Registrar General/the concerned Assistant Commissioner of Police is directed to report the names of the lawyers or persons indulging in such activities to the Chief Justice.
(4) The advocates of the various Associations of this court are also requested to co-operate with the Registrar General/Assistant Commissioner of Police to maintain the decorum and dignity of this Court.
314. The lawyers' boycott sympathising with Sri Lankan Tamil Population and organising demonstrations and protest inside High Court premises was in clear violation of this Court's order in W.P.No.7646/2006. Unfortunately, the above direction was never implemented nor any show cause notice was issued to the protesting advocates. We are of the view, had the directions in W.P.No.7646/2006 been strictly implemented the events would not have taken an ugly turn on 17.02.2009 and on 19.02.2009.
315. The directions in W.P.No.7646/2006 Mutatis Muntandis shall apply to the District courts and Moffusil courts. In so far as District courts and Moffussil courts in the place of Registrar General the District Judges and in the place of Asst. Commr. of Police, the concerned Superintendent of Police are directed to ensure compliance of the directions in W.P.No.7646/2006.
316. We direct the Registrar General to send copy of the order in W.P.No.7646/2006 dated 20.06.2006 to the Bar Council, all the Bar Associations in the Principal Bench and to Madurai Bench and to the District Judges for being circulated to all the Bar Associations and Bar Councils in the District courts and in the Moffussil courts.
317. We further direct as per the directions of the Supreme Court in SLP (Civil) No. 7540 of 2009 dated 14.7.2009, there shall be no procession in the Court verandah or in any part of the court premises except within their Association Halls, that too in a peaceful manner.
318. Occurrence on 17.02.2009:- Dr.Subramaniam Swamy, President/Janata Party appeared in Court Hall No.III on 17.2.2009 before the Bench comprising the Hon'ble Justice P.K.Misra and the Hon'ble Justice K.Chandru to implead himself in connection with Chidambaram Natarajar Temple's case. When the hearing of the case was in progress, at about 11.45 A.M., a group of advocates entered into the Court Hall and assaulted Dr.Subramaniam Swamy and threw eggs on him. The lawyers are also said to have attacked Mr.Kadher Mohideen, Assistant Commissioner of Police who went inside the Court Hall to control the lawyers by disrupting the Court proceedings. Inspite of the warning, the attack continued for 15 minutes. The Bench has recorded the incident and directed the Registry to place the order before the Hon'ble The Acting Chief Justice and also forwarded a copy of the order to the Hon'ble The Chief Justice of India. Based on the complaint lodged by Mr.Kadher Mohideen, ACP, a case was registered in B4-High Court Police Station Crime No.13/2009 u/s 147, 451, 355,332, 506(ii), 294(B) and 153A IPC r/w Section 3(1) of TNPPDL Act.
319. By the order dated 19.2.2009, Bench directed that the incident on 17.2.2009 be treated as PIL and directed that PIL to be heard by five member of Judges to go into the attack on Dr.Subramaniam Swamy in W.P.No.3498/2009. The incident on 17.02.2009 has trigged the whole incident. It is on the said complaint lodged, handful of advocates who attacked Dr.Subramaniam Swamy went to B4-High Court Police Station volunteering to surrender which led to the unsavoury incident on 19.2.2009.
320. Observing that it is the solemn duty of every Court to proceed with the Judicial business during Court hours and that no Court should yield to pressure tactics or boycott calls or any kind of browbeating in Mahabir Prasad Singh's case (1999) 1 SCC 37 : (1998 AIR SCW 3806: AIR 1999 SC 287), the Supreme Court held as under:-
"2. Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof. High Courts are duty bound to insulate judicial functionaries within their territory from being demoralised due to such onslaughts by giving full protection to them to discharge their duties without fear. But unfortunately this case reflects apathy on the part of the High Court in affording such protection to a judicial functionary who resisted, through legal means, a pressure strategy slammed on him in open Court."
In para (16) it was further held as under:-
"16. If any counsel does not want to appear in a particular Court, that too for justifiable reasons, professional decorum and etiquett require him to give up his engagement in that Court so that the party can engage another counsel. But retaining the brief of his client and at the same time abstaining from appearing in that Court, that too not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature, is unprofessional as also unbecoming of the status of an advocate. No Court is obliged to adjourn a cause because of the strike call given by any association of advocates or a decision to boycott the Courts either in general or any particular Court. It is the solemn duty of every Court to proceed with the judicial business during Court hours. No Court should yield to pressure tactics or boycott calls or any kind or browbeating."
321. The incident on 17.02.2009 and voluntary surrender of advocates in Cr.No.13/2009 has trigged the sordid episode on 19.02.2009. The learned Senior Counsel Mr.R.Krishnamoorthy submitted that the occurrence at Court Hall No.III on 17.02.2009 might be an offence under Section 175, 179, 180 IPC and all of which are only non-cognizable offence and therefore, advocates could not have volunteered to surrender on 19.02.2009. It was further submitted that as per the procedure contemplated under Section 345 Cr.P.C., arrest is totally inapplicable to the occurrence on 17.02.2009. Since, larger Bench has seized up the matter, we do not propose to express any opinion on the above submissions.
322. Suffice it to note that Mr.R.Karuppan, has categorically stated that they have gone to B4-High Court Police Station to voluntarily surrender in connection with B4-High Court Police Station Cr.No.13/2009. As pointed out earlier, on 19.02.2009 Court has ordered that five member Judges would hear the W.P.(PIL) No.3498/2009 to go into the attack on Dr.Subramaniam Swamy. After having known that PIL was ordered to be heard by a larger Bench quite possibly, lawyers have gone to B4-High Court Police Station to surrender themselves.
323. The learned Senior Counsel Dr.Rajeev Dhavan, submitted that the surrender of lawyers on 19.02.2009 was a mock surrender only to bargain registration of case against Dr.Swamy. It was therefore submitted that it was unbecoming conduct of lawyers to enact such mock surrender and urged us to initiate proceedings against those responsible for the mock surrender and to provoke the incident on 19.02.2009.
324. In so far as the incident in Court Hall III on 17.02.2009, public interest litigation is pending before the Larger Bench. Cr.13/2009* B4-High Court Police Station has also been registered against lawyers and investigation is pending. That apart, when PIL is pending as to the attack of Dr.Swamy we do not propose to go in detail in the above matter. Nor do we think it appropriate to issue any direction for initiation of proceedings against those lawyers.
325. Occurrence on 19.02.2009:-
At the risk of repetition, let us recapitulate the happenings on 19.2.2009:
10.30 A.M.
Dr. Subramaniam Swamy appeared before ACJ Court and in Court Hall No.III.
For providing security to Dr.Subramaniam Swamy, JCP mobilised 105 Police personnel.
11.30 A.M.
Dr. Subramaniam Swamy leaves High Court campus.
Police personnel go to B2-Esplanade Police Station for debriefing.
12.00 Noon
Advocate Mr.Vijayendran and Mr.Kunaraja appeared in B2-Esplanade Police Station stating that they would surrender and insisted for the list of Advocates involved in Crime No.13/2009.
2.00 * 2.30 P.M.
Large number of Advocates led by Mr.R.Karuppan, Rajinikanth, Vijayendran, Pugazhenthi and Jayakumar had gone to B4-High Court Police Station and insisted for registering the complaint against Dr. Subramaniam Swamy and Radha Mohan as a pre-condition to their surrender.
On receiving information, Mr.Prem Anand Sinha, DC and Mr.M.Ramasubramani, JCP rushed from B2-Esplanade Police Station to B4-High Court Police Station.
3.00 * 3.30 P.M.
On the basis of the complaint by Advocate Mr.Rajinikanth, case was registered in Crime No.14/2009 under Sec.3(1) SC/ST (Prevention of Atrocities) Act and under Sec.506(ii) IPC.
Available strength in B2-Esplanade Police Station was shifted to B4-High Court Police Station.
Advocates demanded copy of FIR and the same was handed over to them. Advocates then started demanding that Dr. Subramaniam Swamy to be arrested and only thereafter, they would surrender and there was slogans raising.
3.00 * 3.45 P.M.
Addl CoP (L&O) and JCP (Central Zone), 2 Dcs, 9 Acs, 11 Inspectors, 4 S.Is. and 90 TSP men came as an additional strength.
Advocates were apprehended and those Advocates who resisted the arrest were also taken to custody.
3.45 * 3.55 P.M.
Stone pelting. Both sides claim that other side pelted stones first.
[Dispute as to time of arriving of Addl. CoP (L&O) Mr.Viswanathan and command to be dealt with later].
[Teargas shells were fired and lathicharge was ordered. There is dispute as to the time firing teargas shells and lathicharge which, we shall deal with it little later].
326. Exercise of Jurisdiction under Article 226 :-
Both sides have filed counter-affidavits and reply affidavits. There are number of inconsistent and varying versions. In the affidavit filed by Mr.Paul Kanagaraj, Ms.Nalini and Mr.Sampathkumar, it is averred that at 3.30 P.M., they have seen group of Police personnel throwing stones on the Advocates. They have also averred that the Police in mufti were wearing Black and White mingled freely with the Advocates and they were the provocateurs. In her affidavit, Ms.Nalini also averred that Policemen were seen carrying stones in a small cloth bag.
327. Drawing our attention to varying versions, learned Senior Counsel Dr.Rajeev Dhavan submitted that the issue involves disputed questions of fact which cannot be determined except on evidence and therefore, the same are not fit to be taken up for adjudication in exercise of Writ jurisdiction. It was further argued that there is no worthy reliable evidence to arrive at the conclusion and therefore, Court should be slow in embarking upon the adjudication of highly disputed questions of fact. Even after lifting the veil, Court can still say that the materials available are not sufficient to arrive at the conclusion. Submitting that when number of persons were injured and the various factors are to be gone into for determining the compensation, such complicated questions of fact cannot be gone into in writ jurisdiction. Learned Senior Counsel further submitted that the massive facts and events are judicially "unmanageable" and therefore, identification of the delinquent Police officers and question of determining the compensation cannot be determined exercising jurisdiction under Article 226 of Constitution of India. In support of his contention, learned Senior Counsel placed reliance upon 1958 SCR 499 [Union of India v. T.R.Varma]; (2005) 12 SCC 725 [Orissa Agro Industries Corporation Ltd. v. Bharati Industries] and (1969) 3 SCC 769 [Gunwant Kaur v. Municipal Committee, Bhatinda].
328. Observing that where highly disputed questions of fact exist which cannot be determined except on evidence, the High Court should not normally entertain the Writ Petition, in 1958 SCR 499 [Union of India v. T.R.Varma], the Supreme Court held as follows:-
".........On the other hand, the point for determination in this petition whether the respondent was denied a reasonable opportunity to present his case, turns mainly on the question whether he was prevented from cross-examining the witnesses, who gave evidence in support of the charge. That is a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned Judges had referred the respondent to a suit."
329. In (2005) 12 SCC 725 [Orissa Agro Industries Corporation Ltd. v. Bharati Industries], Para 7, the Supreme Court held as under:-
"7. .............. Where a complicated question of fact is involved and the matter requires thorough proof on factual aspects, the High Court should not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy, the High Court should not entertain the writ petition."
330. Observing that only as a matter of exception High Court can exercise its discretion under Article 226 of Constitution and entertain Writ Petitions involving disputed questions of fact requiring oral evidence, in (1969) 3 SCC 769 [Gunwant Kaur v. Municipal Committee, Bhatinda], Para 14, the Supreme Court held as follows:-
"14. .............. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition......................"
331. In (2003) 6 SCC 581 (T.K.Rangarajan v. Govt. of T.N.), the Supreme Court has reiterated the jurisdiction of this Court under Article 226 of Constitution of India in the following words:-
"5. At the outset, it is to be reiterated that under Article 226 of the Constitution, the High Court is empowered to exercise its extraordinary jurisdiction to meet unprecedented extraordinary situation having no parallel. It is equally true that extraordinary powers are required to be sparingly used. The facts of the present case reveal that this was most extraordinary case, which called for interference by the High Court, as the State Government had dismissed about two lakh employees for going on strike."
332. In (1980) 2 SCC 593 (Gujarat Steel Tubes Ltd. v. G.S.T.Mazdoor Sabha), the Supreme Court held as under:-
" ..... Article 226 is a sparing surgery but the lancet operates where injustice suppurates. ....... judicial daring is not daunted where glaring injustice demands even affirmative action. ...... And an appellate power interferes not when the order appealed is not right, but only when it is clearly wrong. The difference is real though fine."
333. In case of alleged rigging of Polling Booths in the Chennai Corporation Election, referring to the above decisions, in (2007) 2 MLJ 129 [All India Anna Dravida Munnetra Kazhagam, Chennai v. State Election Commissioner and others] (in which one of us was a member * F.M.I.K.,J) summed up the legal position as under:-
"156. ...... (iv) In a Public Interest Litigation, whenever injustice is meted out to a large number of people, the Court should not hesitate to step in.
(v) In a writ petition under Article 226 of Constitution, even questions of fact of complex nature can be determined.
..................
(viii) If the monstrosity of the situation or other exceptional circumstances cry for timely jurisdictional interdict or mandate, the Court should not hesitate to exercise its extraordinary power under Article 226 of the Constitution.
(ix) The mentor of law is justice and a potent drug should be judicially administered.
(x) Judicial daring is not daunted where glaring injustice demands even affirmative action. ......"
334. Exercise of jurisdiction under Article 226 of Constitution of India is not daunted, where glaring injustice demands affirmative action. This is the suo-moto taken up matter treated as Public Interest Litigation. Whenever injustice is meted out to a large number of people, Court will not hesitate in stepping in. In furtherance of the public interest and in the interest of justice, on the available materials, it is necessary to enquire into the incidents on 19.2.2009.
335. In Gunwant Kaur's case cited supra, Para 16, the Supreme Court held as follows:-
"16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed questions of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in-reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit."
336. The above said decision of the Supreme Court in Gunwant Kaur's case cited supra was followed in a decision of the Supreme Court in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. [(2004) 3 SCC 553], wherein Para 19, the Supreme Court held as under:-
"19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of (Gunwant Kau (Kunwant Kaur v. Municipal Committee, Bhatinda (1969) 3 SCC 769) this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact."
337. As held by the Supreme Court in Rohtas Industries Ltd. v. Staff Union (AIR 1976 SC 425 : (1976) 2 SCC 82 : 1976-I-LLJ-274), the writ power has by and large been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights.
338. Having regard to the facts of the case, High Court has discretion to entertain or not to entertain the Writ Petition. Ofcourse, by and large when disputed questions of fact arise, High Court would not go into such disputed facts and filing of suit may be the appropriate remedy. Where necessary facts as to negligence/excesses are available, the High Court can proceed under Article 226 of Constitution of India. No hard and fast rules can be laid down on these aspects and obviously the remedy under Article 226 would depend upon facts and circumstances of each case.
339. The case before us is unprecedented. On 19.2.2009 even when the Courts were functioning, without informing ACJ/Registrar General, Police force was brought in. Police went on rampage and about 175 lawyers, staff and also litigant public have sustained injuries. Needless for us to state that exceptional or extraordinary circumstances of this case warrant exercise of jurisdiction under Article 226 of Constitution of India. The monstrosity of the situation and exceptional circumstances in this case convince us to exercise jurisdiction under Article 226 of Constitution of India.
340. In fact, due to the enormity of the situation that prevailed in the campus of this Court, the Full Bench of this Court thought it fit to suo moto issue a Writ in order to examine the ghastly incident, its cause and the perpetration, for the purpose of passing appropriate orders to uphold the dignity and honour of this great Institution. Therefore, we are convinced that the Writ Petition is maintainable and we reject the said submission of the learned counsel.
341. Learned Senior Counsel Dr.Rajeev Dhavan submitted that disputed questions of fact cannot be determined except on evidence and that hardly any reliable evidence has been placed before the Court. Learned Senior Counsel would further urge that serious doubts arise as to the acceptability of Videos and Photos and based on such slender materials court cannot adjudicate upon the highly disputed questions of fact. We are unable to subscribe the submissions that there are no sufficient materials produced before us to resolve the contentious points raised.
342. Both in the suo-moto Writ Petition and other Writ Petitions filed by the Advocates, Respondents have filed counter-affidavits traversing each and every allegations in the affidavits. Respondents have clearly and distinctly dealt with the averments in the affidavits. Both sides advanced an elaborate submissions and we have heard the matter at length. In fact, hearing of the case stretched over for a couple of weeks. Based on the averments in Petitioners' affidavits and counter-affidavits and from the elaborate submissions, we are able to analyse and examine the contentious points raised before us. We are not to point accusing the finger either against the Police or Lawyers. We are primarily concerned with the Police excess/intrusion into the Majesty of the Institution and the attack on the persons and Court buildings and damage to Court properties paralysing the institution.
343. Probabilities are important elements of consideration. On the materials placed before us and calling in aid experience and by preponderance of probabilities, exercising Writ jurisdiction, we proceed to examine the facts and the contentious points urged before us.
344. Admissibility of sound and video recordings and photography:-
A series of videos and photographs have been filed and shown in the Court and were marked as under:-
Video Clippings provided by the Police on the 19.02.2009 incident * CD-R1
Video Clippings provided by Mr.Viswanathan * CD-R2
Video Clippings filed by Ms.Vaigai -CD-P3 & P4
Video Clippings provided by Mr.Karuppan-CD-P5
Video Clippings provided by MHAA-CD-P1 & P2
Photographs filed by both petitioners and respondents
345. Questioning authenticity of videos filed by petitioners, the learned senior counsel Dr.Rajeev Dhavan submitted that only the Police video recording have been authenticated, as the Police videographer has filed an affidavit in the Court and Photos and Videos produced by the Petitioners is not authenticated and hence unreliable. Placing reliance upon R.M.Malkani V. State of Maharashtra (1983) 1 SCC 471 the learned senior counsel submitted that admissibility of tape record of relevant conversation is subject to it being authenticated in terms of the source, time and place without tampering.
346. A contemporaneous tape record of a relevant conversation is admissible under Section 8 of the Evidence Act. The tape recorded conversation is relevant to the matter in issue if the identification of the voice and accuracy of the conversation is proved by eliminating the admissibility of erasing the recorded tape.
347. In so far as admissibility of tape recorded statement, in 1995 (supp.) SCC 611 the Hon'ble Supreme Court has held as follows:-
"A tape-recorded statement is admissible in evidence, subject to the following conditions:-
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence: direct or circumstantial.
(3) Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded.
(4) The tape-recorded statement must be relevant.
(5) The recorded cassette must be sealed and must be kept in safe or official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances.
In Ramsingh's case that, the tape-recordings were held misleading and could not be relied on because in most places they were unintelligible and of a poor quality and of no use so their potential prejudicial effect outweighed the evidentiary value of the recordings.
348. We are conscious that anything which is born of trickery or trapping or cunningness should be very cautiously and carefully considered by the Court before it is admitted and accepted.
349. That a bald denial of the contents of a video tape is not adequate to doubt its authenticity; there should be material to show that the video clippings are doctored or morphed. This view was reiterated in Jagjit Singh V. State of Haryana MANU/SC/5473/2006 : AIR 2007SC590. In R.M.Malkani V.State of Maharashtra MANU/SC/0204/1972:1973CrilJ228. It was noted that in Shri.N.Sri Rama Reddy, Yusufalh Esmail Nagree V. State of Maharashtra MANU/SC/0092/1967 : 1968CrilJ103 and S. Pratap Singh V. State of Punjab MANU/SC/0272/1963 : (1996) ILLJ458SC a conversation or dialogue recorded on a tape recording machine was accepted as admissible evidence. But, it was pointed out that such a conversation is admissible provided:- first, the conversation is relevant to the matters in issue; second, there is identification of the voice; third, the accuracy of the tape recording is proved by eliminating the possibility of erasing the tape record. 'A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is resgestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act. This is, of course, subject to ascertaining the genuineness of the tape recording and its being free from tampering or mutilation.
350. The respondents have not disputed that the video clippings filed by the petitioners relate to the occurrence. Even though video clippings filed by the petitioners do not have the running time, We have watched the videos and looked into the photos as corroborative piece of evidence. In addition to the materials, we have watched the videos and looked into the photos for proper appreciation of various contentions. In so far as timings of chasing of lawyers and lathi charge, we have mainly taken into account the video clippings filed by the respondents CD-R1 & CD-R2. It is to be noted that in CD-R1 filed by the respondents video clippings jump at several places with 'no footages'. We have mainly referred to the Video clippings filed by Mr.Viswanathan, Addl. CoP (L & O) C.D-R2.
351. Justice B.N.Srikrishna's report:
On 26.02.2009, the Hon'ble Supreme Court requested Justice B.N.Srikrishna, former Judge of the Supreme Court to inquire into the incident which happened on 19.02.2009 and file a report. After holding initial enquiry on 28.02.2009, 01.03.2009, Justice B.N.Srikrishna submitted his report on 04.03.2009. On 06.03.2009, the Hon'ble Supreme Court took the report as part of the record and passed the following order:
Report of enquiry submitted by Justice Srikrishna is taken on record.
"...... Report is being sent to the State Government and also the Acting Chief Justice of the Madras High Court for appropriate action if any".
352. In his report Justice B.N.Srikrishna though found police excess, observed that the "circumstances facing the police on the fateful day justified use of force by the police".
353. Placing reliance upon (1984) 3 SCC 161 (Bandhua Mukti Morcha v. Union of India) the learned Senior Counsel Mr. Rajeev Dhavan, submitted that Enquiry Report would furnish prima facie evidence of the facts and data gathered by the Commission during the objective and impartial enquiry carries much value. The learned Senior counsel urged us to consider the report as primafacie evidence of lawyers unruly behaviour justifying the use of force by the police. The learned Senior counsel would further submit that since the Supreme Court has taken on record Justice Srikrishna's report which finds no mention as to any objections by the lawyers, to that extent, Justice Srikrishna report attains prima facie finality and urged us to look into the report of Justice Srikrishna as of evidentiary value.
354. With due respect, even in the beginning of hearing of the matter, we made it clear that we may not refer to Justice B.N.Srikrishna's report. The reason being it was only an Interim Report. By its order dated 26.02.2009, Hon'ble Supreme Court asked ACJ to decide terms of reference in consultation with the Advocate General of the Madras High Court and Presidents of various Bar Associations in Madras and place before the Committee the terms of reference to the committee. It does not transpire from the report of Justice Srikrishna that any such terms of reference was finalised by ACJ for reference before the committee.
355. Having regard to the then continuation of Courts' boycott by lawyers, Justice B.N.Srikrishna filed only an Interim Report. Since it is only an Interim Report, with due respect, we were of the view we may not refer to Justice B.N.Srikrishna report. We have heard the matter at threadbare. Since overwhelming materials are placed before us by way of affidavits and counter affidavits and other materials and submissions, we proceeded to analyse the matter afresh.
356. Incidents * Surrender, Stone pelting and Lathicharge:-
We proceed to deal with this on the following aspects:-
Whether there was pre-plan, premeditated and Police conspiracy as alleged by the Advocates.
Whether presence of Police force on the Court premises was uninvited and unjustifiable or was it only a pre-cautionary measure.
Whether there was imminent "Threat Perception" compelling the need for mobilising the Police as alleged by the Police.
Attack and who were responsible for the incident.
Whether there is Contempt of Court and if so, who are to be proceeded for Contempt of Court.
Moulding of relief.
357. Re.contention -Premeditation and Police conspiracy:-
In the affidavits after affidavits, lawyers have alleged that the Police action against the unruling mob was pre-planned conspiracy to attack the lawyers. Lawyers have taken varied stance that Police unleashed violence against the lawyers as part of pre-planned and premeditated plan. In the representation dated 22.2.2009, Ms.Vaigai has stated that "Police carried out a premeditated and well planned attack on the judiciary". In his affidavit dated 09.3.2009, Mr.Paul Kanagaraj, President MHAA has alleged that "it is a pre-planned conspiracy to create a chilling effect on the legal fraternity in the State including the judiciary". In her affidavit dated 11.3.2009, Ms. Nalini, and in his affidavit dated 11.3.2009, Mr.Velmurugan, averred that the attack was with pre-plan. Mr.Velmurugan has gone a step further alleging that " the attack could not have been done without the knowledge of the Home Minister, Home Secretary and Chief Secretary". In the affidavit of Mr.M.Baskar dated 07.9.2009, pure unfounded speculation has been made terming the incident as "Operation Blackcoat".
358. Likening the February 19 violence to 'Operation Blue Star' at the Amritsar Golden Temple, Mr.S.Prabakaran, President TNAA submitted that similar preplanning preceded the campus violence, which was code-named by Police as "Operation Black Coat". Reiterating the averments, in their counter-affidavits Ms.Vaigai and Mr.Paul Kanagaraj would also submit that the entire violence of the Police was pre-planned and premeditated.
359. Mr.S. Prabhakaran, President, TNAA and Ms.Vaigai, learned counsel have drawn our attention to the letter of the Commissioner in D.O.Lr.No. 151/S.B.VII/2009 dated 6.2.2009 to the Registrar-General bringing it to the notice of the Registrar-General the behaviour of the lawyers indulged in agitations, entering into ruckus with Police officials and disturbing the public peace. It was therefore contended that the pre-determined mind of CoP is evident from the letter dated 6.2.2009. Based on the said letter we are not inclined to hold that there was conspiracy by Police against lawyers. The tenor of the said letter only indicates the anguish of CoP about the law and order situation in and around the High Court premises and not a pre-determined mind as alleged by the lawyers.
360. The stand of lawyers that the incident was pre-planned and premeditated is unfounded. The allegations are pure unfounded speculation and unsupported by any materials. As rightly submitted by the learned Senior Counsel Dr.Rajeev Dhavan, mere assertion that it is pre-planned and premeditated would not constitute the evidence and mere assertion cannot by themselves lead to the conclusion that there was Pre-arranged Plan. To constitute premeditation, one should have reflected the determination. There is no material showing expression of 'ill-feelings' or 'previous threat' by the Police to say that there was Pre-arranged plan.
361. The allegations that the incident was well prepared in furtherance of Police conspiracy are baseless and mere speculation based on nothing. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. Absolutely, there is no material to show that there was transmission of thoughts sharing unlawful design. To constitute conspiracy, there must be 'common design' and 'common intention' to work in furtherance of common design. Equally, the averments are lacking as to what was the unlawful design. In fact, if the group of lawyers had not gone to B4-High Court Police Station for surrender, the day 19.2.2009 would have passed off like any other normal day. While so, it is farfetched to contend that the incident on 19.2.2009 was a pre-planned operation by the Police conspiracy. We have no hesitation in rejecting the plea of pre-plan and Police conspiracy.
362. Whether mobilisation of Police force as pre-cautionary measure:-
Before we deal with this question, it is necessary to refer security plan of the High Court and the sanctioned strength of Police personnel for the security of High Court.
363. The High Court of Judicature, Madras is one of the three Chartered High Courts established by Letter Patent granted by Her Majesty Queen Victoria bearing dated 26.06.1862. High Court, Madras is the highest Court in the State. The building is of antiquity Heritage building with Indo-Sarocenic construction. High Court is a place of historical importance attracting tourists. For any tourist, visit to Chennai is incomplete without a visit to High Court buildings. High Court sprawls in an extent of 38 acres. The premises comprises of Court Halls, Judges' Chambers, Registry, Legal Services Authority, Museum, Law Chambers, Canteen, B4-High Court Police Station, City Civil Court, Family Court, Small Causes Court, Tribunals, Government Press, Law College, Fire Station, BSNL office, Railway Booking Office, Post Office etc. It is a place visited by number of litigants and public. Having regard to the antiquity and nature of Heritage building, there is compelling need to preserve the present building and premises for posterity.
364. Mobilisation of Police Force * Whether Precautionary Measure
Security to the High Court : W.P.No.3197/2007 * 02.02.2007: Providing security to the High Court has drawn the attention for quite some time. Having regard to the vast extent accommodating number of Courts and floating population of lawyers, staff, clients, witnesses, visitors and vendors, in G.O.Ms.No.1536 dated 11.10.1996, B4-High Court Police Station was established sanctioning Police personnel.
365. As per G.O.Ms.No.1810 dated 15.12.1997, Police protection was provided to all the Courts in the High Court complex and four Magistrate Courts in Chennai and sanctioning additional manpower, arms, ammunition and equipments, vehicles etc. As per G.O.Ms.No.51 dated 18.1.1999, Security wing was created to the Hon'ble the Chief Justice and to the Hon'ble Judges, High Court, Madras by providing personal security in the Cadre of Sub-Inspector of Police.
366. For the purpose of ensuring security in High Court premises, Registrar-General, High Court, Madras filed W.P.No.3197/2007. In the said Writ Petition in W.P.No.3197/2007, it was stated that the total sanctioned strength of Police personnel comprising Officers and other rank is 252. Considering that High Court is a Court of Record under Article 215 of Constitution of India as well as it is housed in a Heritage building and that it also attracts thousands of visitors every day and that there is an imperative need to provide security cover to the premises of the High Court, in W.P.No.3197/2007 [Registrar-General, High Court, Madras v. State of Tamil Nadu, rep. by the Chief Secretary to Government, Chennai and others (reported in (2007) 2 MLJ 456)], Division Bench of this Court has issued the following directions to maintain the sanctioned strength of 252 Police personnel. In Para (13) the Division Bench held as under:-
"13. ......
(i)The respondents are directed to maintain the sanctioned strength of 252 Police personnel comprising of officers and other rank and provided in the tabular column above (para 6) at all times and also to fill up the existing vacancies within a period of four weeks from today.
(ii)The Registrar-General of the High Court will indicate a suitable place for constructing accommodation for locating the Police outpost within the High Court campus to the respondents, who will construct a building at their own costs with a built-up area of 4000 sq.ft., comprising of ground floor and first floor.
(iii)No personnel, who is coming within the sanctioned strength of 252, comprising of various categories listed above shall be deputed to any other work, except for the work of the High Court and no diversion of the force will be permitted, except with the prior permission of the Honourable Chief Justice of the High Court.
(iv)The respondents 1 and 2 are directed to ascertain the number of Police personnel required for providing security at the residence of the Honourable Judges within a period of four weeks from today and also issue an order sanctioning the said strength and report compliance to this Court regarding the same, within a period of two weeks thereafter.
(v)Adequate training to the Police force deployed as suggested by the Special Committee should be given.
367. By the letter dated 31.5.2007, Government of India issued guidelines for the security of High Courts and District/Subordinate Courts in the country. In the said guidelines, it has been mentioned as follows:-
"(v) The High Court in the respective States/UTs should be declared as High Security Zone.
(vi)There should be fool-proof Access Control System for the premises of the High Courts with regulated entry for all concerned, including Judges, staff members, advocates, plaintiffs and respondents, accused persons, under trials, press, general public, etc., on the basis of passes/Identity Cards. Different types of passes/Identity Cards may be issued to different visitors.
(vii)There should be random frisking or checking of persons entering the Court premises.
(viii)There should be provision for the separate frisking of the under trials, preferably in the lock-up provided for them.
368. After various incidents of terrorist attacks in the form of serial blasts in different parts of the country and pointing that there have been certain incidents of bomb blasts in Court complexes in the State of Uttar Pradesh, reiterating the necessity for security arrangements in the High Courts and District/Subordinate Courts and also in respect of Hon'ble Judges, on 17.11.2008 directions were issued to the Chief Secretary, State of Tamilnadu by the Home Secretary, Government of India to review the security arrangements in the High Court and District/Subordinate Courts and also in respect of Hon'ble Judges.
369. Pursuant to these directions, Security Committee of the High Court reviewed the entire security system as per the revised security arrangement system in Para 2.5 of the Security Plan that Static Armed Guard of one plus four to be posted at all entrances in the High Court campus. Those guards are to provide very effective check against any surprise entry into restricted areas and form the first barrier against any unauthorised intrusion. The proposal envisaging deployment of 451 personnel was approved by the Committee of Judges in their meeting dated 28.1.2009. In compliance, Quick Reaction Team (QRT) headed by an Officer has been positioned inside the High Court premises from 28.1.2009. As per the direction of the Court in W.P.No.3197/2007, the sanctioned strength is 252 Police personnel. The proposal for deployment of 451 personnel was approved by the Committee of Judges in their Proceedings dated 28.1.2009.
370. Shifting of Police personnel from B2-Esplanade Police Station to B4-High Court Police Station:- After a long period of strike, on 19.2.2009, Advocates resumed work. On 19.2.2009, Dr. Subramaniam Swamy appeared in Court Hall No.III and in another Court. The following security was mobilised for the security duty in connection with the visit of Dr.Subramaniam Swamy (excluding the actual strength available for duty in Court) at 9.00 A.M.
Addl. CoP
Jcs
Dcs
ADCs
Acs
Insp.
SIs.
Others
Total
Local
1
3
1
4
8
23
65
105
QRT
1
20
21
SAG
1
20
21
TOTAL
1
3
1
4
8
25
105
147
Elaborate bandobust arrangement was made with 3 DCs including Mr.Prem Anand Sinha-DCP, Mr.Ramasubramani-JCP(North) and Mr.Viswanathan-Addl. CoP. Addl. CoP Mr.Viswanathan and JCP (North) Mr.Ramasubramani came to the High Court campus at 10.00 A.M. and remained till 11.30 A.M. Dr. Subramaniam Swamy left the Court at 11.30 A.M. and it was safe exit. When Dr. Subramaniam Swamy appeared in the Court absolutely there was no ruckus.
371. According to Mr.Ramasubramani-JCP (North), since Dr. Subramaniam Swamy within 'Z' category has to appear in the Court and that it is the responsibility of the State to protect the person under 'Z' category, to supervise the security arrangements, he came to the High Court at 9.00 A.M. to personally oversee the bandobust arrangements. Further, according to JCP (North), since the Assembly was in Session and the Hon'ble Chief Minister was then hospitalised, he took an objective decision in mobilising the strength to provide security to Dr. Subramaniam Swamy. We do feel that mobilising strength for security duty in connection with the visit of Dr. Subramaniam Swamy was a bonafide decision taken by JCP (North). After Dr. Subramaniam Swamy left, the Police personnel gathered at B2-Esplanade Police Station for debriefing. The debriefing after bandobust is with meaning and purpose i.e. to find out any happenings during security and the personnel when will have to report back and to give such other instructions.
372. In the counter-affidavit of the jurisdictional DCP, Mr.Prem Anand Sinha, it is averred that when the Police personnel gathered at B2-Esplanade Police Station for debriefing, at about 12.00 noon, ACP * MKB Nagar told them that few Advocates approached him to surrender and requested for list of accused Advocates concerned in B4-High Court Police Station Crime No.13/2009 and list of accused Advocates was furnished to them by ACP * MKB Nagar.
373. From the Videos filed by the Respondents, it was seen that lawyers have gone to B4-High Court Police Station at 14.00 hours for surrender. It was also seen from the Videos that lawyers raised slogans and insisted for registration of case against Dr. Subramaniam Swamy. Case in Crime No.14/2009 was registered against Dr. Subramniam Swamy and copy of FIR was handed over to the lawyers at 14:20 * 14:22 hours. At that time, only one Police Officer was seen in the midst of the lawyers. After receiving copy of FIR, lawyers started raising slogans and shouting for arrest of Dr. Subramaniam Swamy. After about 14:22 hours, there is a gap in the Video clippings. In the Videos, we notice the presence of Police personnel shifted to B4-High Court Police Station between 14:22 to 15:34 hours.
374. According to Mr.Ramasubramani-JCP (North), he and Mr.Prem Anand Sinha-DCP and other Police personnel waited in B2-Esplanade Police Station waiting for surrender of Advocates. On receiving information that there was sloganeering and protest in B4-High Court Police Station, available strength in B2-Esplanade Police Station was shifted to B4-High Court Police Station.
375. In his counter-affidavit Mr.Viswanathan-Addl. CoP has averred that when he came to B2-Esplanade Police Station, he learnt that the entire Police force present in the B4-High Court Police Station at 10.00 A.M. continued to be stationed near B4-High Court Police Station. The averments in Para (8) alleging that the Police force continued to be stationed near B4-High Court Police Station is not correct. It was seen from the Videos, from 14:00 * 14:20 hours, there was no Police force near B4-High Court Police Station. Only on information, about brewing tension in B4-High court Police Station, Police force was shifted from B2-Esplanade Police Station to B4-High Court Police Station.
376. As per the order in W.P.No.3197/2007, the sanctioned strength of Police personnel was 251 (excluding ACP). As per the security plan of the High Court, the sanctioned strength is 451 (including officers). According to Police that the strength mobilised on 19.2.2009 was 292 in addition to the existing strength of 130 more or less within the limits of 451 which is the sanctioned strength as per the security plan.
377. By and large, the then strength actually available for duty in the High Court (Guards, Judges Chambers, Halls, Gates, Booth, Traffic etc.) is only about 130. In addition to the existing strength in the High Court 130, on 19.2.2009 additional strength mobilised was 147 + 118 + 26 = 291 totalling 421 [130 + 291 = 421]. As per the security plan, the sanctioned strength of 451 personnel was mainly for man power deployment at (i) Gates; (ii) Armed Guard; (iii) Surveillance; (iv) Bomb detection; (v) Bomb Disposal; (vi) Control Room; (vii) Baggage Screening; (viii) High Court Halls/Judges Chambers; (ix) Other Court premises; (x) Parking areas and (xi) QRT. When the manpower deployment was for multi-purpose ensuring security, evidently that force was not meant to be garnered in B4-High Court Police Station. The additional strength deployed on 19.02.2009 were TSP, SAG, TNCF and not regular Armed Reserve. While so, it cannot be contended that strength mobilised on 19.02.2009 was only as per the sanctioned strength of security plan.
378. THREAT PERCEPTION: Learned Counsel Dr.Rajeev Dhavan mainly argued that in the assessment of Police, there was 'Threat Perception' which necessitated mobilisation of force and subsequent acts. According to the Police 'Threat Perception' was on two counts:- (i) High Court being high security Zone, Police was concerned about general security and advocates gathered in huge numbers were sloganeering. (ii) Antecedents of Advocates particularly activities from November 2008.
379. Submitting that holistic threat perception meant taking into account various antecedent facts related to the incidents of Advocates' excess in and around the High Court campus and involving Advocates, learned Senior Counsel enumerated number of incidents such as:-
2001 * 2007 - 92 criminal cases booked against several Advocates.
12.11.2008 * Incident of clash between two groups of Dr. Ambedkar Government Law College Students within the High Court campus.
29.1.2009 * Advocates entered the Court presided by ACJ and asked Advocates there to join in boycott. Further, the Advocates went to the Vth Court presided by Justice Manikumar and disrupted proceedings by banging on the door. Advocates moved inside High Court complex shouting slogans on megaphone against Sonia Gandhi.
30.1.2009 * Advocates hijacked MTC bus to pay homage Muthukumar. Subsequently, about 100 advocates went in a procession inside the High Court campus and sloganeered.
03.2.2009 * 50 Advocates staged demonstration to pay homage to Muthukumar and burnt a portrait of Subramaniam Swamy.
04.2.2009 * Hartal declared all over Chennai by political parties. Cycle shop (Bombay Cycle Mart) opposite the High Court which was still open damaged by advocates.
11.2.2009 * 100 Advocates headed by Mr.Kanakaraj led demonstration and burnt Congress Party flag and portraits of Congress leaders within High Court campus.
12.2.2009 * 60 Advocates headed by Mr.Kanakaraj took out procession within High Court campus and burnt Congress party banner. Later, 75 Advocates went in procession from High Court and attempted to lay siege to the Army Headquarters, Chennai.
13.2.2009 * Two group of Advocates headed by Mr.Kanakaraj and Mr.Rajinikanth led a procession to picket Central Railway Station.
16.2.2009 * 20 Advocates sloganeered and burnt portraits of Sonia Gandhi and Sri Lankan President within the High Court campus. Later 35 Advocates burnt their Election Photo Identity Cards renunciating their Indian citizenship and burnt photo of Sonia Gandhi.
It was submitted that in the above circumstances, there was serious 'Threat Perception' and in view of such 'Threat Perception', Police mobilised additional strength to provide security to Dr. Subramaniam Swamy and in the light of surrender by lawyers. Learned Senior Counsel would further submit that it is for the Police to take reasonable action to deal with the 'Threat Perception' and it is not for the Court to substitute its own view whether mobilisation of strength was necessary or not. It was further submitted that leeway to be given to the Police to deal with the threats to Law and order situation or public order, Police must evaluate over all such Threat Perception.
380. Ofcourse, there have been number of cases against the Advocates. But in most of the cases, charge sheets have not been filed. We do not subscribe to the contention of 'Threat Perception' based on the prior incidents. As we pointed out earlier, on 19.2.2009 lawyers resumed work and from the morning Courts were smoothly functioning. Visit of Dr. Subramaniam Swamy passed off peacefully. Surrender was initially supposed to be a voluntary surrender. In our considered view, there was no imminent 'Threat Perception' as alleged by the Police to shift the Police personnel from B2-Esplanade Police Station to B4-High Court Police Station and to mobilise additional strength.
381. In the counter-affidavit of Mr. Viswanathan, Addl. CoP, it is averred that when he reached B2-Esplanade Police Station at 3.10 P.M., he learnt that "entire Police force secured in the morning at 10.00 A.M. continued to be stationed near High Court Police Station". The stand of Mr.Viswanathan that Police Force continued in B-4 Police Station is not correct. As we pointed out earlier, at the time of registration of FIR and handing over copy of FIR to lawyers at 2.21 P.M., in the video clippings, we do not find additional police strength; But only Inspector of Police with lawyers.
382. According to Mr.Ramasubramani-JCP (North) and Mr. Prem Anand Sinha-DCP, there was a meeting held by ACJ on 18.2.2009 and they were instructed to take firm action against the lawyers involved in the attack on Dr. Subramaniam Swamy in Crime No.13/2009. Mr. P.N.Prakash, learned counsel for Mr.Ramasubramani-JCP (North) submitted that Assembly was in Session and the Hon'ble Chief Minister was in hospital and Dr. Subramaniam Swamy was in 'Z' category protection and therefore, even after his safe exit, and number of advocates gathered and since there was sloganeering and trouble brewing up, shifting of Police personnel was an objective decision taken by the JCP (North) in "Good faith".
383. According to the General Clauses Act X of 1897 "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly whether it is done negligently or not.". Good faith is denied in Sec.52 IPC as under:-
"Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention."
Good faith requires not logical infallibility, but due care and attention. But how far erroneous actions or statements are to be imputed to want of due care and caution must in each case, be considered with reference to the general circumstances and the capacity and intelligence of the person, whose conduct is in question. When a question arises as to whether a person acted in good faith, then it devolves upon him to show not merely that he had a good intention but that he exercised such care and skill as the duty reasonably demanded for its due discharge.
384. Observing that the test is of a reasonable and prudent man, in Re : S.K.Sundaram (2001) 2 SCC 171, the Supreme Court, in Paras (28) and (29) held as follows:-
"28. The expression "good faith" in criminal jurisprudence has a definite connotation. Its import is totally different from saying that the person concerned has honestly believed the truth of what is said. Good faith is defined in Section 52 of the Indian Penal Code thus:
"52. Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention."
29. See the language of the law in this regard. It starts in the negative tone excluding all except what is allowed to be within its amplitude. Insistence sought to be achieved through the commencing words of the definition "nothing is said tobe done or believed in good faith" is that the solitary item included within the purview of the expression "good faith" is what is done with "due care and attention". Due care denotes the degree of reasonableness in the care sought to be exercised. In Black's Law Dictionary, "reasonable care" is explained as
"such a degree of care, precaution, or diligence as may fairly and properly be expected or required, having regard to the nature of the action, or of the subject-matter and the circumstances surrounding the transaction. It is such care as an ordinary prudent person would exercise under the conditions existing at the time he is called upon to act". "
385. From the Video clippings [Respondents' side CD-R1], we have seen that at 15:34 hours, lawyers were raising slogans asking the Police *to go out* from the campus. Sloganeering continued till 15:41 hours. We could see from the Video clippings, Mr.Ramasubramani-JCP(North) and other Police Officers trying to pacify the protesting lawyers. At about 15:45 hours, lawyers have been forcibly taken to custody in the Police van. There was a lot of hustle and tussle while taking the lawyers to custody.
386. After the lawyers were taken to custody and Police van left the premises, at 15:47 hours, there was a lot of protest by lawyers. What initially started as protest against the Police turned to be 'stone pelting' by the lawyers from 15:50 hours onwards. It was seen from the Video clippings, lawyers have taken position in the corridors of Courts and pelted stones towards the Police for about two to three minutes. Within a couple of minutes stones were pelted from all directions. Police also pelted stones and matched the lawyers in their lawlessness. Stones that came their way was quickly thrown back by the Police.
387. The relationship between the Police and lawyers has never been cordial. In (2007) 2 MLJ 1 [Madras High Court Advocates Association represented by its President, High Court Campus, Chennai v. State of Tamil Nadu rep. by the Chief Secretary, Fort St. George, Chennai and others], Division Bench of this Court has set out the genesis of this problems of lawyers vs. Police rivalry and expounded measures to nip such incidents in bud. Any friction between the fraternity of lawyers and police carry dangerous portents of escalation beyond a point of easy containment.
388. In the background of persistent rift between police and lawyers, bonafide in shifting the Police personnel from B2-Esplanade Police Station to B4-High Court Police Station has to be examined. The phrase "due care and attention" implies genuine efforts to reach the truth and not the ready acceptance of ill-natured belief. The test is of a reasonable and prudent man. As we pointed out earlier, lawyers resumed work on 19.2.2009 and the Courts were functioning smoothly. In fact, visit of Dr. Subramaniam Swamy passed off peacefully. In such circumstance, was it prudent on the part of the Police to accept the surrender of lawyers in B4 High Court Police Station. Police had well known that Advocate Mr.Vijayendran was involved in several cases. Even though, Mr. Vijayendran, Advocate involved in Crime No.13/2009 approached the Police, Police have not chosen to arrest him. On the other hand, it is stated that they have believed the words of Mr. Vijayendran that the Advocates involved in Crime No.13/2009 have proposed to surrender.
389. B4-High Court Police Station is situated in the midst of City Civil Court and Small Causes Court. City Civil Court, Principal Judge's chamber and Court are situated just abutting the access road on the northern side of B4-High Court Police Station. City Civil Court's Annexure building and Small Causes Court and Family Court along with creche are on the eastern side and north eastern side respectively. Since the Courts were functioning on that date, before shifting the Police force from B2-Esplanade Police Station to B4-High Court Police Station, JCP (North) Mr.M.Ramasubramani and DCP Mr.Prem Anand Sinha ought to have exercised 'due care and attention' and foreseen the consequences. The situation for further protest and sloganeering was created by the Police by forcibly taking the lawyers into custody at 3.45 P.M.
390. As we have pointed out earlier, Police personnel must have been shifted from B2-Esplanade Police Station to B4-High Court Police Station between 2.30 to 3.30 P.M. For shifting the Police personnel from B2-Esplanade Police Station to B4-High Court Police Station, JCP (North) must have certainly obtained permission from the CoP. On coming to know about brewing tension in the High Court campus between 2.00 to 2.30 P.M., the CoP called Addl. CoP Mr.Viswanathan at 2.45 P.M. and instructed him to go to High Court (according to Mr.Viswanathan B-2 Esplanade Police Station) to monitor the situation. The then Commissioner's Cellphone No. is 9444465555. Cell Phone of Mr.A.K.Viswanathan is 9444000029. Cell Phone of Mr.Ramasubramani is 9940455455. The call log of CoP between 14:23:53 to 15:55 hours are as under:-
919444465555
919940455455
Incoming
19-2-09
14:23:53
87
919444591111
11041
35640601166038
1104-IBS-Commr
919444465555
919841021543
Incoming
19-2-09
14:38:22
75
919444591111
11041
35640601166038
1104-IBS-Commr
JCP(N) calls CoP
919444465555
919841021543
Roming-IC
19-02-09
14:38:38
74
919444590031
0
919444465555
919940455455
Outgoing
19-02-09
143951
92
919444591111
11041
35640601166038
1104-IBS-Commr
CoP calls JCP(N)
919444465555
919444000029
Outgoing
19-02-09
144518
118
919444591111
11041
35640601166038
1104-IBS-Commr
CoP calls Addl.CoP(L&O)
919444465555
919443049191
Incoming
19-02-09
144757
41
919444591111
11041
35640601166038
1104-IBS-Commr
919444465555
919443049191
Roming-IC
19-02-09
144814
40
919444596800
0
919444465555
919940455455
Incoming
19-02-09
150102
137
919444591111
11041
35640601166038
1104-IBS-Commr
JCP(N) calls CoP
919444465555
919600039077
Incoming
19-02-09
152312
65
919444591111
11041
35640601166038
1104-IBS-Commr
919444465555
914424301269
Incoming
19-02-09
152808
105
919444591111
11041
35640601166038
1104-IBS-Commr
919444465555
914424301269
Roming-IC
19-02-09
152824
105
919444591162
0
919444465555
919445012233
Outgoing
19-02-09
153008
221
919444591111
11041
35640601166038
1104-IBS-Commr
919444465555
919444000029
Outgoing
19-02-09
153505
87
919444591111
11041
35640601166038
1104-IBS-Commr
CoP calls Addl.CoP(L&O)
919444465555
919444000029
Incoming
19-02-09
153812
49
919444591111
11041
35640601166038
1104-IBS-Commr
Addl.CoP (L&O) calls CoP
919444465555
919444000029
Incoming
19-02-09
155049
89
919444591111
11041
35640601166038
1104-IBS-Commr
Addl.CoP (L&O) calls CoP
919444465555
919600041411
Outgoing
19-02-09
155250
36
919444591111
11041
35640601166038
1104-IBS-Commr
CoP calls DCP
919444465555
919444000029
Incoming
19-02-09
155557
10
919444591111
11211
35640601166038
1121-Egmore
Addl.CoP(L&O) calls CoP
Between 2.23 P.M. to 3.55 P.M., CoP had spoken to JCP (North) at least three times. The Commissioner directed Addl. CoP Mr.Viswanathan to go to High Court to monitor the situation. Neither CoP nor JCP (North) have chosen to inform the High Court/ACJ about the shifting of Policer personnel from B2 to B4 Police Station. They did not take permission of the High Court/ACJ for deploying the Police Personnel.
391. It is not the case of Police that they informed the High Court/ACJ about the brewing tension and mobilisation of additional Police force. From the call log of CoP, we do not find any such calls to the High Court Registry. The official Cellphone of the then Registrar-General is 9444449933. From the call log of CoP, we find that the first call from Registrar-General was at 16:01:33 hours about which we shall deal a little later.
392. It was nextly contended that in view of volatile situation, the Police were free to act and where the situation warranted in exercise of 'Good faith', Police mobilised additional strength. As we pointed out earlier, B4-High Court Police Station is in the midst of City Civil Court and Small Causes Court in the High Court campus. What ever be the compelling situation before mobilisation and deployment of Police inside the Court premises, since Courts were functioning at that time, Police ought to have foreseen the consequences. Having regard to the fact that High Court/ACJ was not informed about the mobilisation of strength, in our considered view, the Police have not exercised 'due care and attention' before deployment of Police personnel.
393. In 1995-2-LW (Crl) 723 [Rajendran and 23 others Contemners/Respondents/Police Officers/Advocates of Saidapet Bar], in Saidapet Metropolitan Magistrate Court, for taking into custody of one Natarajan accused in a registered Crime and his Advocate who came to surrender before Magistrate. The said Natarajan and his advocates were taken away by the police forcibly, which, Police closed northern gates fully. Southern gate was partially closed. Taking serious view of the act of Police in closing the gates and observing that the Police officers must have intimated to the Senior Magistrate about the closure of northern gate fully and the southern gate partially, Division Bench of this Court held as under:-
"61-A. ....... Police Officers must have intimated to the Senior Magistrate about the closure of northern gate fully and the southern gate partially and the purpose for which they had closed the gates. They must have equally informed the other heads of the department, in the variety of officers situated in that campus. If there is an emergency, the police can certainly act, without forwarding prior intimation, but even then they would certainly owe a duty to inform the concerned officers of court as well as other officers soon thereafter about the closure of the gates, in a situation, emergent and the reasons, that led to such closure. It cannot be overlocked, that several hundred of member of the public would usually be visiting this campus in Saidapet. The question is not whether any one of the members of the public or even the Magistrate themselves had complained about the inaccessibility to the premises, leading to obstruction of the course of justice."
394. We fully agree with the view taken by the Division Bench. For deployment of additional strength in the High Court campus, the Police ought to have obtained permission of ACJ/Registrar General. If there was an emergency, Police can certainly act, without prior intimation. Even then they are duty bound to inform the ACJ/Registrar General as to the problem in the campus and mobilisation of additional strength to handle the situation.
395. Between 2.00 to 3.45 P.M., the trouble was brewing. In his earlier report, CoP averred that around 2.30 P.M. trouble was brewing, he deputed Addl. CoP Mr.Viswanathan along with JCP (Central Zone) and other officers (118 men and officers) to the High Court to take charge of the situation. As seen from the report of CoP and the counter filed by Mr.Prem Anand Sinha, DCP, at about 3.00 P.M., the Addl. CoP (L & O) and JCP (Central Zone), 2 Dcs, 9 Acs, 11 Inspectors, 4 SIs and 90 TSP men [Totally 118] came as an additional strength. According to Addl. CoP (L & O), he arrived in the spot only at 3.50 P.M. [regarding which, we shall deal later]. As per the Man power chart showing the presence of Police personnel at 3.00 P.M., the total strength was 265 personnel and officers [147 + 118]. Evidently, CoP has learnt about the volatile situation and only because of which, CoP asked the Addl. CoP (L & O) to go to High Court to monitor the situation and the additional strength of 118 men and officers were also sent to High Court campus.
396. As we have pointed out earlier, JCP (North) Mr.Ramasubramani has spoken to the CoP number of times from 14:23:53 hours onwards. Based on the information, at about 2.30 P.M., CoP has made all arrangements to send additional reinforcement. Despite communication of the Officers who were in the field and despatching of additional strength to the High Court, neither CoP nor jurisdictional Officers present in the field have chosen to inform the High Court/ACJ about the volatile situation and mobilisation of additional strength of Police personnel and officers in B4-High Court Police Station.
397. Onbehalf of the Registrar-General, High Court, Madras [12th Respondent], Mr.Muthukumaraswamy, learned Senior Counsel submitted that High Court precincts cannot be tested on the touch stone of Criminal Procedure Code and that as per Article 215 of Constitution, High Court is the superior Court of Records and power of regulating the entry of Police vests with the Chief Justice.
398. As per Article 215 of Constitution of India, High Courts in India are superior Courts of Record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers. [See AIR 1967 SC 1 (Naresh Shridhar Mirajkar v. State ofMaharashtra) & AIR 1993 SC 1014 (M.V.Elisabeth and others v. Harwan Investment & Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Gao].
399. The Constitution has assigned a new role to the Constitutional Courts to ensure rule of law in the country. Under Constitutional frame, High Court is complete self-contained and self-sufficient Institution, independent of others. Every High Court draws its own power and jurisdiction from the provisions of Constitution.
400. The Chief Justice of High Court is the head of judiciary in the State and in over all control of its administration. Being a self-contained institution, it is prerogative of the Chief Justice to regulate the entry of Police in the campus. That is why for deploying the Police personnel or for increasing the strength and to regulate the security by the order of the Chief Justice, Security Committee has been constituted. Before deploying additional strength (in addition to the existing personnel for security) either for providing security to VIPs attending the Courts or under other circumstances, permission of the High Court/ACJ ought to be obtained.
401. Ofcourse, in cases of Law and Order problem in the Campus, Police cannot remain spectator as in the incident happened in Dr. Ambedkar Government Law College, Chennai. For deploying additional strength, permission of High Court/Hon'ble the Chief Justice shall be obtained. When there is serious Law and Order problem within the campus, Police are to necessarily act even without prior intimation and even then, they are duty bound to inform the High Court/Chief Justice about mobilisation of additional strength and the steps taken in handling the situation. In so far as the Districts, the Principal District Judge/District Judge is the authority to regulate the entry of Police and security arrangements on the above lines subject to other directions issued by the High Court.
402. In fact, CoP was conscious to inform the High Court before registration of case regarding the incident on 17.2.2009. On 17.2.2009, CoP had written letter Rc.No.203/SB VII/09 dated 17.2.2009 seeking concurrence of the High Court to register a criminal case and set the criminal law in motion. In response to the said letter, by the letter dated 18.2.2009, Registrar-General [Roc.No.760-A/2009/F1 dated 18.2.2009] informed the CoP "that under law, the concurrence of the Registry is required (sic) to register a criminal case and in view of the fact that already a complaint is preferred by Mr. Kader Mohideen, ACP, Police should do it on its own". By and large, to register a case concurrence of High Court is not required. We feel that in the said letter of Registrar General word 'not' is missing before the word 'required' and we think it is a typographical mistake. When CoP was conscious of informing High Court before setting the criminal law in motion on 19.2.2009, CoP ought to have informed the High Court for mobilisation of extra strength.
403. In (1996) 6 SCC 323 [Commissioner of Police, Delhi and another v. Registrar, Delhi High Court, New Delhi], the former Prime Minister Mr.P.V.Narasimha Rao was to be provided proximate security by SPG during his appearance in Tis Hazari Courts. When SPG sought permission from Delhi High Court for deploying the Police persons in Tis Hazari Courts, having regard to the practical difficulties involved in Police personnel in the Court premises, Administrative Committee of five Hon'ble Judges declined permission to deploy Police personnel in Tis Hazari Courts to provide proximate security. When Commissioner of Police moved the Supreme Court for change of venue, accepting the decision of Administrative Committee of Delhi High Court, Supreme Court accepted the plea of change of venue in providing proximate security satisfactorily by deploying necessary Police officers. Mobilisation of additional strength in Court premises has its own impact involving practical difficulties and cannot be a matter of course.
404. At the risk repetition, we note that JCP (North) [Mr.M.Ramasubramani] and jurisdictional DCP [Mr.Prem Anand Sinha] do not seem to have exercised due care and attention. Question of 'Good faith' should be considered in the position of the Police officers and the surrounding circumstances. After the strike, lawyers resumed work on 19.2.2009. From the incident on 04.2.2009 and 17.02.2009 and other incidents, the Police officers must have quite known about the unacceptable behaviour of the Advocates. While so, Police officers ought to have tactfully handled the situation. It is not as if some officers in the lower hierarchy alone were in the spot. Since the officers in the higher hierarchy, Mr.Ramasubramani-JCP (North), Mr.Prem Anand Sinha-DCP were in the field, they ought to have foreseen that any slight jerk would disrupt the functioning of the Courts. Keeping in view the facts circumstances and Courts functioning, in our considered view in shifting and mobilisation of Police personnel from 2.30 P.M. to 4.30 P.M., the Police particularly CoP Mr.Radhakrishnan, JCP (North) Mr.Ramasubramani and DCP Mr.Prem Anand Sinha have not exercised due care and attention and are to be held squarely responsible. This is all the more so, when they have not chosen to inform the High Court/ACJ about mobilisation of strength. This initial mistake was a costly mistake which led to shedding of blood in the campus and extensive damages to the Court buildings and properties.
405. In so far as, Mr.Viswanathan-Addl. CoP, as we pointed out, he was assigned the task of monitoring the surrender of lawyers. According to Mr.Viswanathan-Addl. CoP at 14:45 hours he was asked by CoP to proceed to *B2-Esplanade Police Station* and monitor the developments caused by the surrender of Advocates. Mr.Viswanathan-Addl.CoP arrived at B2-Esplanade Police Station at 3.10 P.M. When he reached B2-Esplanade Police Station, Mr.Viswanathan-Addl. CoP must have learnt about the brewing tension in B4-High Court Police Station and advocates resisting the surrender. Even though, he arrived at B2-Esplanade Police Station at 3.10 P.M., Mr.Viswanathan, Addl. CoP has chosen to remain in B2-Esplanade Police Station. Only after the lawyers were taken to custody at 15:45 hours, Mr.Viswanathan-Addl. CoP reached in B4-High Court Police Station at 3.50 P.M. Having been assigned the task of monitoring the surrender of lawyers, we find that Mr.Viswanathan-Addl. CoP has avoided his responsibility and chosen to remain in B2-Esplanade Police Station.
406. In his counter-affidavit, Mr.Viswanathan-Addl. CoP has not indicated the details of his conversation with Mr.Ramasubramani-JCP(North) and Mr.Prem Anand Sinha-DCP. In our considered view, Addl. CoP Mr.Viswanathan has also not exercised 'due care and attention' and not acted in 'good faith' in handling the situation and is to be held equally responsible.
407. Surrender and Arrest:-
According to Police, Advocates proposed to surrender including persons who had several cases pending against them. Initially, it was proposed to be a voluntary surrender. M/s.R.Karuppan, Rajinikanth, Vijayendran, Pugazhenthi, Jayakumar and large number of Advocates went to B4-High Court Police Station volunteering to surrender at 2.00P.M. and demanding registration of case against Dr. Subramaniam Swamy as condition precedent. As seen from the Video produced by the Police (CD-R1) and from the contents in Crime No.15/2009, case against Dr. Subramaniam Swamy in Crime No.14/2009 was registered prior to at about 2.20 P.M. and lawyers received copy of FIR at 2.21 P.M. On receipt of FIR, lawyers started raising slogans that Dr. Subramaniam Swamy must be arrested immediately.
408. Even though, lawyers came to B4-High Court Police Station creating an impression of voluntary surrender, it is stated that after registration of case, they were not prepared to surrender and started raising slogans for arrest of Dr. Subramaniam Swamy. From the Videos (C.D-R1 and R2), it is seen that lawyers were shouting slogans and were unruly. After noticing slogan shouting and unruly behaviour of the lawyers, at least at that stage, Police ought to have realised that any reaction by them would precipitate the situation which was likely to disrupt the functioning of the Courts. In our considered view, Police instead of showing restraint have committed serious error in deploying additional strength of Police Personnel and arresting lawyers inside the campus. As pointed out earlier, between 14:23 hours to 15.55 hours, there were three conversations between JCP (North) and CoP and at 14:45:18 hours, CoP issued direction to Addl. CoP Mr.Viswanathan to proceed to High Court to monitor the situation. Even at that time, additional reinforcement (118 personnel) was commanded and additional strength of 118 reached High Court premises even at about 3.00 P.M.
409. In the counter-affidavit of Mr.Prem Anand Sinha-DCP and from the Videos, we find that when the lawyers went to the Police Station and at the time of registration of FIR and immediately thereafter, there was sloganeering and commotion. It is seen from the Videos that inspite of such commotion and volatile situation, lawyers were forcibly taken to custody and they were taken to Thousand Lights Police Station.
410. Onbehalf of the lawyers, it was submitted that in the melee only innocent Advocates who were standing by were taken to custody which provoked the lawyers to react. To ascertain about the names of the lawyers who were taken to custody, we have called for General Diary of Thousand Lights Police Station. But we did not find any entry regarding High Court lawyers taken to Thousand Lights Police Station. Ms.Jeyakodi, Inspector of Police, B2-Esplanade Police Station has filed an affidavit on 29.9.2009 stating that details showing names of arrested lawyers was kept in B4-High Court Police Station was destroyed when the Police Station was set on fire. Regarding arrest of lawyers, advocate Mr.G.Balaji has filed affidavit making certain allegations against the Police officers. We are not inclined to go into merits of rival contention. Such disputed questions could be examined only in the trial in Cr.no.13/2009-B4, High Court Police Station and in [Crl. R.C.No.2(S)/2009/CBI/SCB]. However, the fact remains that the arrest of 15 Advocates triggered the whole incident. It is hard to believe that no records were kept as to who were arrested and where they were taken to custody. The story put forth in the affidavit of Mr.Jayakodi, Inspector of Police that the records were destroyed in the fire when B4-High Court Police Station was set on fire cannot be believed. In fact, the affidavit of Mr.Jayakodi, Inspector of Police was filed only after we repeatedly asked where the arrested Advocates were taken to custody. Affidavit of Mr.Jayakodi, Inspector of Police that the records were destroyed in the fire clearly seems to be an after thought. By seeing the Videos, we feel that no records could have been made as the lawyers were forcibly taken into the Van. In the affidavit filed by Mr.G.Balaji, Advocate it is seen that they were kept in custody till night. B4-High Court Police Station was set on fire at 5.45 P.M. and fire was extinguished between 6.00 * 6.30 P.M. While so, the affidavit of Mr.Jayakodi, Inspector of Police that the records showing arrest of Advocates were destroyed in the fire is unbelievable.
411. Arrest of Advocates in the Court Premises:-
Section 41 Cr.P.C. deals with the power of a Police officer to arrest any person without an order from a Magistrate and without a warrant. Section 42 deals with the power of a Police officer to arrest any person who in the presence of a Police Officer has committed or has been accused of committing a non-cognizable offence and who refuses on demand "to give his name and residence or gives a name or residence which such officer has reason to believe to be false". Section 43 empowers any private person to arrest any person who in his presence commits a non-cognizable offence, or any proclaimed offender. Section 44 states that when any offence is committed in the presence of a Magistrate whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender and may thereupon subject to the provisions contained in the Code as to bail commit the offender to custody. Thus the Code gives power of arrest not only to a Police Officer and a Magistrate but also under certain circumstances or given situations to private persons.
412. Dr. Rajeev Dhavan, learned Senior Counsel and learned counsel Mr.P.N.Prakash contended that as per Sec.41 Cr.P.C., Police Officer is empowered to arrest any person without an order from a Magistrate and without a warrant and there was nothing wrong for the Police Officers to take the lawyers to Police custody. Learned counsel Mr.P.N.Prakash would submit that to diffuse the situation, Police have taken the lawyers to custody and it cannot be said that the Police acted with malafide. It was further urged that Police did not go into the Court Halls searching for any accused/lawyers and when the lawyers came to the Police Station on their own, there was nothing wrong in taking them to custody.
413. Placing reliance upon 1995-2-LW (Crl) 723 [Rajendran and 23 others/ Contemners/ Respondents/ Police Officers/ Advocates of Saidapet Bar], learned counsel Mr.P.N.Prakash submitted that Police Officers are empowered to arrest lawyers involved in cognizable offence any where and there is no impediment for arresting the lawyers in the Court precincts.
414. Reliance was placed upon 1956 Rajasthan 179 [Rajasthan Bar Council v. Nathuram and another]. Observing that arrest of counsel in the Court precincts may not amount to contempt of Court. In the said decision, it was held as follows:-
"Generally speaking, arrest of counsel in the court precincts, without more, may not amount to contempt of Court because it cannot generally be predicated of an arrest in such cases that it constitutes a contemptuous interference with the administration of justice or that it has the tendency to cause any such obstruction."
415. Learned counsel Mr. P.N.Prakash also placed reliance upon 1983 LW (Crl) 289 [Roshan Beevi and others v. Joint Secretary to the Govt. of Tamil Nadu, Public Dept. (Law and Order) and others] and (1994) 3 SCC 440 [Directorate of Enforcement v. Deepak Mahajan and another] to show distinction between "Arrest" and "Taking into custody". Those decisions deal with distinction between "Arrest" and "Taking into custody" are not of much relevance to the case on hand.
416. Drawing our attention to Dr. D.C. Saxena V. Hon'ble the Chief Justice of India reported in 1996 5 SCC 216 the learned counsel Ms.Vaigai submitted that in the said case even for taking the contemnor into custody and confine him to Tihar Jail, The Hon'ble Supreme Court has directed Court Marshal to take custody of the contemnor, the learned counsel Ms.Vaigai submitted that such is the action taken by the Supreme Court in calling the Police inside the Court premises even for handing over custody of a contemnor while so for deploying additional strength of Police personnel, the Commissioner of Police ought to have obtained permission of the ACJ.
417. Laying emphasis upon the concept independence of judiciary, the learned counsel Ms. Vaigai placed reliance upon Supreme Court Advocates-on-Record Association and another, V.Union of India, with S.P. Gupta V. Union of India [AIR 1994 SCC 268] wherein it has been held as under:-
"75. In the draft Constitution, there was no reference to this Directive Principle, but on being reminded of the important plank of the freedom movement, Article 39A was introduced which reads thus:
"39A. The State shall take steps to secure that, within a period of three years from the commencement of this Constitution, there is separation of the judiciary from the executive in the public services of the State".
..........
78. During the Constituent Assembly Debates on Art. 39-A, one of the members, Shri R.K.Sidwa on 25th November 1948 made the following pertinent observation:
"As Dr.Ambedkar stated yesterday, ever since its inception the Congress has been stating that these two functions must be separated if you really want impartial justice to be done to the accused persons.
The arguments advanced yesterday were that in Free India the conditions have changed and that therefore, it is not desirable that these two functions should be separated. The real secret, so far as I know, of those who advocate retaining the same position is that they want to retain their power. If the Honourable Ministers of the provincial Governments feel that these two should not be separated, it is because they feel the power of appointments which is in their patronage, would go away from them to the High Court Judges."
.............
81. Realising the significance of the independence of judiciary and in order to give a full life to that concept, the founding fathers of our Constitution, felt the need of separation of judiciary from executive and designedly inserted Art. 50 in the Constitution after a heated debate; because the judiciary under our constitutional scheme has to take up a positive and creative function in securing socio-economic justice to the people".
418. In the above case, focus was on the independence of judiciary and that it is the live wire of our judicial system. If that wire is snapped, the doomsday of the judiciary will not be far of. The contention that independence of judiciary is to be extended to the entire Court precincts does not merit acceptance. If such contention is to be accepted, Court premises would become a sanctuary for criminals and it would not be possible to maintain law and order within the precincts of Court.
419. In AIR 1945 Calcutta 107 [Niharendu v. Porter], Special Bench of three Judges of Calcutta High Court held as under:-
"It has been argued that arrests inside the court building are improper. I cannot agree with that contention. Persons going to and from the Court upon the business of the Court in connection with litigation are exempt from arrest under civil process, but there is no such exemption in respect of criminal process as the case in (1843-12-LJQB (N.S) 49, referred to hereafter, shows. If such general exemption were to obtain, the court building would become a sanctuary for criminals and the administration of justice in them would become impossible. There have been cases where arrest on criminal process have occurred in the Sessions Court when a prisoner has been acquitted and discharged on the charge and rearrested in the court, while the Judge is sitting, on another charge. A case occurred sometime back where a litigant in a civil case on the conclusion of his case was arrested as he was leaving the court room on a criminal charge preferred at Madras".
420. Read with Article 21 the directive principles in Article 39-A of Constitution of India has been taken cognizance of by the Supreme Court. The State shall secure that the operation of the legal system promotes Justice on basis of equal opportunity. Placing reliance upon State of Maharashtra V. Maubhai Pragaji Vashi and Others in (1995) 5 SCC 730, the learned counsel Ms.Vaigai submitted that lawyers are rendering service in accomplishing the Constitutional goal of rendering free legal aid rendering speedy trial rendering their assistance for speedy trial and such freedom of lawyers cannot be scuttled by beating lawyers. Main plank of arguments was that lawyers as Officers of Court are entitled to immunity within the Court campus.
421. Drawing our attention to Parliamentary privileges, the learned counsel Ms.Vaigai submitted that as per Parliamentary privileges, no member of Parliament can be arrested within the precincts of Parliament, and permission of Speaker/Chairman to be obtained and such immunity available even to the private person inside the Parliament House. It was further argued that any person entering the precincts of the Parliament are entitled to immunity and privileges. Persuading us to draw an analogy, the learned counsel Ms.Vaigai submitted that Court premises is like the precincts of Parliament and submitted that deploying of Police personnel would erode the independence of judiciary. It was further argued that when Section 41 Cr.P.C. cannot be applied to the precincts of Parliament, the Police officials were not right in declaring the gathering of lawyers in the precincts of High Court as an "unlawful assembly". It was further argued that independence of judiciary is a larger concept and such independence is available even to a practising lawyer.
422. The above arguments advanced enlarging the concept of independence of judiciary to all the activities of practising lawyers cannot be countenanced. Source of Parliamentary privileges is from Article 105 of Constitution of India. Article 105 of Constitution empowers the Parliament to frame such Parliamentary privileges. More important of the privileges is the freedom of speech in Parliament and immunity to the members from any proceedings in any Court in respect of anything said in Parliament. The powers, privileges and immunities of each HOUSE of Parliament its committees and its members derive their authority from Article 105 of Constitution of India. We are of the considered view that no such analogy can be drawn from the Parliamentary privileges to that of the Court Precincts. The contention that there cannot be an arrest inside the Court building under any circumstance cannot be countenanced. If such a contention is to be accepted, Court premises would become a sanctuary for all unlawful activities.
423. Onbehalf of the lawyers, it was contended that arrest of the lawyers in the premises was malafide and such arrest would amount to interference with the administration of justice. That an arrest to constitute contempt must be something more than arrest without legal justification and that there must be something in the nature of malafides, that is, an intention directly or indirectly to interfere with the due administration of justice.
424. Generally speaking, arrest of counsel in the court precincts, without motive, may not amount to contempt of court since it cannot, generally be predicated of an arrest in such cases that it constitutes a contemptuous interference with the administration of justice or that it has the tendency to cause any such obstruction.
425. In AIR 1956 Raj 179 [Rajasthan Bar Council v. Nathuram], counsel Kothari was conducting a criminal case in the Magistrate's court and while in the middle of the case he just went out for a few seconds, to return back into court to continue the cross-examination. The Sub-Inspector arrested him, handcuffed him and took him away. That was a clear case of obstruction to the course of justice and preventing counsel from doing his duty before the court who was then engaged fully in the actual conduct of the case and whose progress was interfered with by the act of the Sub-Inspector. The court held that where an arrest is sought to be made in the view of the court or almost in its view and which causes an actual obstruction to the judicial duties performed by presiding officer at the time of the arrest complained against. On this count the Sub-Inspector was adjudged guilty of contempt and the more aggravating count was that the Sub-Inspector refused to produce counsel before the Magistrate even after the later ordered it. On both counts he was found guilty and fined Rs.100/- and to suffer imprisonment for one month in case of default of payment within a month.
426. Only where the circumstances of arrest of a counsel show that it was in the bad faith and tended to interfere with the administration of justice, it could be held to be contempt. When a counsel is arrested for criminal process, mala fide has necessarily to be shown to indicate that there was an intention to interfere with the due course of justice. As we pointed out earlier, Advocates involved in Crime No.13/2009 volunteered to surrender. Though, arrest of lawyers was by force, it cannot be said that the arrest was mala fide.
427. Rule of law applies to all and lawyers are no exception:-
There is fine distinction between discharge of professional duties and other acts of the lawyers in the campus. As an officer of the Court, lawyers may be entitled to protection in discharging their professional duties which again is subject to their adherence to the Code of Conduct. Say for instance, lawyers cannot be picked up from Court Hall or while proceeding to a court to defend a case. While discharging his professional duties as an Officer of the Court, a lawyer may be entitled to veil of protection. But to say that there is general immunity for all the activities of lawyers inside the Court premises would tantamount to conferring special privilege upon them. Within the campus or elsewhere, lawyers are not above the law.
428. Throwing stones on 19.2.2009 by lawyers is most unacceptable. For such behaviour in the campus lawyers cannot seek protection. Regarding the incidents on 19.2.2009, a case was registered in Crime No.15/2009 which is now continued to be investigated by CBI in R.C.1(S)/2009/CBI/SCB under Sec. 147,353,332,450,436,307 IPC and under Sec.3 (1) of TNP(PDL) Act.
429. Recent violence in Dr.Ambedkar Government Law College, Chennai and conduct of lawyers on 19.2.2009 is a matter of serious concern. That being so, to accept the contention that the lawyers are entitled to immunity of all their activities in the Court premises would be dangerous. Acceptance of such contention would lead to a situation that lawyers would assume that they could violate the law with impunity. Rule of law applies to all and lawyers are 'no exception'.
430. Incident: Pelting of stones and Lathicharge: The Respondent police officers Mr.Ramasubramani-JCP (North) and Mr.Prem Anand Sinha-DCP, Flower Bazaar averred that the crowd became restive and started shouting at the police and started pelting stones. Addl. CoP Mr.Viswanathan has also averred that " the mob of advocates got unruly and started pelting stones at the police present there, which merely retreated to the police station inside the High Court premises".
431. Learned senior counsel Dr.Rajeev Dhavan submitted that mob of lawyers threw stones first protesting against the arrest of lawyers. The learned senior counsel would further submit that lawyers cannot take law into their own hands and react to the arrest by pelting stones and lawyers had no reason to use the force under any circumstances.
432. Per contra, the Petitioners/ lawyers averred that stones were pelted on all directions and that reports say that the police started first. In his affidavit, Mr.Paul Kanagaraj averred that they learnt that the police and their hired goons in mufti were wearing black and white uniforms mingled very well with the advocates and they were the provocateurs.
433. In his reply affidavit dated 14.9.2009, Mr.Paul Kanagaraj has taken a plea of self defence alleging that the advocates acted only in self defence since the police abused all the advocates and provoked the advocates by throwing stones at them.
434. Ms.Vaigai has submitted that pelting of stones was started first by the police and in any event, it could only be stated that the lawyers acted in self defence on seeing other lawyers being taken to custody and such reaction could only be a natural reaction.
435. From watching the videos, we have noticed that after lawyers were taken to custody, from 15.46 * 15.47, there were lot of protest by lawyers. At about 15.47 hours, there were stone pelting by lawyers. The stone pelting persisted for about six minutes. Stone pelting continued till about 15.53.31 hours. At about 15.53.35 hours, the police chased the lawyers. For few seconds, thereafter there is no footage in the video. We have noticed that at every time, the police chased the lawyers, they went on damage-spree, damaging cars and motor cycles parked around the premises, particularly belonging to lawyers. We have also seen that at about 16.11.58 hours, the Registrar-Management Mr.Vijayan, pacifying the lawyers and persuaded them not to pelt the stones. From 16.14 to 16.18 hours, lawyers receded back. At 15.55 hours, few advocates were loudly saying and asking the police to go out of the campus as their job of arrest is over. Inspite of the same, stone pelting continued. We have noticed that at about 15.53.35 hours, there was chasing of lawyers by the police. At about 16.02.53 hours, one team of police seen entering into the corridors of the City Civil Court Annexe building.
436. When the additional strength was deployed for taking the lawyers to custody, we fail to understand as to what was the necessity for large number of police to be present in steel-helmeted, wielding lathies. We have also watched police acting in retaliation throwing back the stones. We are of the view that the police officers in command did not act tactfully to bring the situation under the control. The Addl. CoP Mr.Viswanathan, who was then in command does not seem to have acted to bring the situation under control. We also fail to understand as to what was the need for retaining large number of police personnel/riot police even after taking the lawyers to custody.
437. In fact, from the call log of the CoP, we have also noticed that then Registrar-General spoke to CoP (Registrar General Cell No. 9444449933) at 16.01, 16.03 and 16.06. Though details of conversation are not known, we think that the Registrar General must have asked the Commissioner to withdraw the police force. In para (34) of his counter affidavit CoP averred that ACJ requested him over phone to withdraw the police force. But the situation did not improve. On the other hand, the situation only worsened by deploying more strength.
438. From CD-R2 produced by Addl. CoP Mr.Viswanathan, it was seen that from 16.14 to 16.18 hours, advocates were receding about 16.23 hours, there was incessant stone pelting from police. At 16.24 hours, there was lathicharge on a private party/Sivakumar who sustained head injuries due to lathicharge. The said Sivakumar appeared before us on 08.10.2009 and reiterated that he sustained head injuries due to lathicharge. At about 16.26 hours, advocate Mr.Mohanakrishnan pelted stones towards police. The advocate Mr.Mohanakrishnan was not amongst the group of lawyers. But, emerging singly, advocate Mr.Mohanakrishnan pelted stones. At 16.26 hours, number of riot police surrounded advocate Mr.Mohanakrishnan and he was brutally beaten causing and heavy bleeding head injuries. As we pointed out earlier, advocate Mr.Mohanakrishnan, pelted stones as a single individual and not standing along with the group. While advocate Mr.Mohanakrishnan was defiant by pelting stones, the police could have very well surrounded and taken him to custody. On the other hand, advocate Mr.Mohanakrishnan was brutally beaten by the group of Police personnel.
439. In paragraph 10 of the counter affidavit, Additional CoP Mr.Viswanathan has averred that he told CoP that it would be prudent to withdraw the police force and that CoP insisted of retaining the police in the campus. We do not propose to go into the details of the same, suffice it to note that if Additional CoP thought so, when he was in command,he could have exercised control over the situation. But, that was not done. Seemingly there was no Police officers seen keeping the personnel within the limits and ordering self-restraint.
440. As we pointed out earlier, from 15.50 to 16.25 hours, there was persistent stone pelting. The police did not act tactfully and bring the situation under control. During stone pelting, the police chased the lawyers number of times and every time, they chased the lawyers, the police behaved in a worst possible manner. Instead of containing the violence, the police incited the violence and damaged the vehicles.
441. During 16:30 * 17:30 hours, there were two spells of lathicharge. One at 16:39 hours and another at 17:05 hours. In his counter-affidavit, CoP has averred that he has entered the riot area at 17:00 hours. In Para (37) of his counter-affidavit, CoP averred that between 16:30 hours and 17:00 hours, he was continuously in touch with the Registrar-General/ACJ [7 calls] and that he was continuously coordinating with all top personalities to diffuse the tense situation. In Para (37), CoP further averred that -
"..... Once I learnt about fresh tension around 17.00 hours, I immediately rushed from the Esplanade Gate area towards the riotous scene and personally started handling the situation"
In their counter-affidavits, Mr.Prem Anand Sinha-DCP (12th Respondent in W.P.No.3910/2009) and Mr.Sarangan-DCP (11th Respondent in W.P.No.3910/2009) have also averred that they saw CoP in the place of occurrence at about 5.00 P.M. and that CoP directed the Police personnel and Police officers to withdraw and return to B2-Esplanade Police Station. On the other hand, in his counter-affidavit, Addl. CoP Mr.Viswanathan averred that CoP came to the High Court Police Station with additional reinforcement of Armed Police of more than 100 even at 16:30 hours.
442. Statement of CoP that he entered the High Court premises at 17:00 hours is demonstrably incorrect. Call logs of Cellphone of CoP [Mobile No.9444465555] indicates that presence of CoP near Family Court even at 16:43:50 hours. The following call logs of CoP would show his presence in the scene of occurrence even from 16:43:50 hours.
919444465555
919444449933
Incoming
19-2-09
16:43:50
7
919444596987
10491
35640601166038
1049-IBS-Family Court
CoP in Family Court
919444465555
919444449933
Incoming
19-2-09
16:44:21
76
919444591110
10372
35640601166038
1037-High Court-2
919444465555
919840983832
Incoming
19-02-09
16:47:53
83
919444591110
10372
35640601166038
1037-High Court-2
919444465555
919444414203
Incoming
19-02-09
16:49:17
2
919444591110
10372
35640601166038
1037-High Court-2
919444465555
919444414203
Outgoing
19-02-09
16:49:40
104
919444591110
10372
35640601166038
1037-High Court-2
919444465555
919444449933
Incoming
19-02-09
16:51:26
73
919444591110
10372
35640601166038
1037-High Court-2
919444465555
919444449933
Outgoing
19-02-09
16:55:31
86
919444591110
10372
35640601166038
1037-High Court-2
919444465555
919444449933
Incoming
19-02-09
16:57:36
141
919444591110
10372
35640601166038
1037-High Court-2
919444465555
919444802222
Roaming-IC
19-02-09
17:00:21
35
919444590420
0
919444465555
919444802222
Incoming
19-02-09
17:00:25
35
919444591110
10372
35640601166038
1037-High Court-2
919444465555
919003073527
Incoming
19-0209
17:29:33
33
919444591110
10392
35640601166038
1039-Flower Bazar-S
919444465555
919444444710
Outgoing
19-02-09
17:30:31
177
919444591110
10392
35640601166038
1039-Flower Bazar-S
919444465555
911204341925
Incoming
19-02-09
17:33:52
10
919444591110
10372
35640601166038
1037-High Court-2
919444465555
911204341925
Roaming-IC
19-02-09
17:34:09
10
919444596497
0
919444465555
919944309627
Incoming
19-02-09
17:34:33
19
919444591110
10362
35640601166038
1036-Flower Bazar-E
919444465555
919444449933
Incoming
19-02-09
17:36:20
256
919444591110
10403
35640601166038
1040-Port Trust-3
443. From the photographs produced by the Petitioners, it is seen that standing alongside with JCP (North) Mr.Ramasubramani while CoP was talking over Phone, the wrist watch of CoP shows the time as "16:43 * 16:44 hours". In fact at 16:43 * 16:44 hours, CoP received two calls from the Registrar-General. Those two calls indicate the towers "Family Court" and "High Court" respectively. Call log, photographs and the averments in the counter-affidavit of Mr.Viswanathan-Addl. CoP, in our view, the CoP must have been present in the scene of occurrence even from 16:43:50 hours. We are constrained to express our disapproval in filing such false affidavit in the Court. By simply saying that around 17:00 hours, he rushed towards riot scene and handled the situation, CoP has not chosen to taken up the responsibility for extensive lathicharge at 17:05 hours which we would shortly elaborate.
444. Between 16:30 * 17:30 hours especially during lathicharge (two spells at 16:39 and 17:05 hours) and while chasing the lawyers, Policemen took law into their own hands. There was excessive use of force on the lawyers. As many as 175 persons - lawyers, litigants, Court staff and one Hon'ble Judge [Justice A.C.Arumugaperumal Adityan] sustained injuries. Policemen chased the lawyers to the streets and lashed out lathi blows on any one who was in white shirt. Even the parties [wearing white shirt], one P.A. to the Hon'ble Judges (who was wearing black Coat] and High Court drivers who were wearing white, none of them were spared. Police went on rampage throwing stones and lashing out lathi blows on the Cars/Two wheelers parked in the complex. Policemen beat up even women lawyers whom they came across.
445. Policemen threw stones towards corridors including the corridors adjacent to the Chief Justice Chamber and smashed the window panes. Police entered into the Court room of Small Causes Court and Family Court within the High Court complex and indulged in destruction of furnitures, computers and other articles within the Court premises. There was plenty of blood shed in the inner access roads, along the corridors and also inside the office premises where the police entered looking out for the lawyers. It was submitted that Police did not spare the children's creche also from their attack. We have seen from the Videos, not being satisfied with beating up the lawyers within the Court premises, the rampaging police ran through the Chambers of lawyers within the High Court premises and also went to the lawyers Chambers situated in Lingi Chetty street, Thambu chetty street and other streets in the vicinity of the High Court. It was submitted that extensive damages were caused to the lawyers chambers and furnitures and also library of Law Association, MHAA and Small Causes Court.
446. Lathicharge continued irrespective of whether lawyer is a miscreant or not; whether the individual resisted the violence or not. It was a mindless attack on whomsoever the Police came across * be it lawyers, litigants, Court staff. Even members of the media were not spared, when the police chased and lathi-charged the advocates. A photographer of Tamizh Chudar, two cameramen of Makkal TV and a photographer of Nakkeeran were among the injured brought to hospital. Another journalist N.Karthik Prabhu is said to have locked himself up along with a few Judges in the Small Cause Court to escape from the police. But some police personnel are said to have knocked the door and asked them to come out. When Mr.Prabhu and others came out to reveal their identity, the police hit them. (Source the Hindu dated 20.02.2009)
447. From the Videos, we have seen Justice A.C.Arumugaperumal Adityan went into the riot area, the Judge wearing white shirt and black coat. One lathi blow fell on Justice A.C.Arumugaperumal Adityan and the Judge had fallen down. A lady advocate who was trying to protect him had also fallen down. We have also noticed that group of lawyers who tried to prevent the lathi blows on Justice A.C.Arumugaperumal Adityan were also brutally attacked. The Hon'ble Judge while taken to ambulance, heard shouting "stop it, it is a Chartered High Court". The incident on 19.2.2009 depicted above, left scores bleeding and thousands embittered.
448. Dispersal of unlawful assembly:
Commissioner as Executive Magistrate empowered to exercise Powers:
As per Sec.5 of Tamil Nadu City Police Act, 1888 * Administration of the Police of the City of Madras is vested with the Commissioner of Police, Madras.
449. As per Sec.7 of Tamil Nadu City Police Act * Commissioner is vested with powers as Presidency Magistrate. Sec. 7 of TNCP Act reads as under:-
*7. Commissioner's powers as Magistrate * The Commissioner shall by virtue of his office be a Presidency Magistrate, but shall exercise his powers as Magistrate subject to such orders as may from time to time be issued by the State Government.
Provided that he shall not exercise any powers under Chapter XVIII, XX or XXI of the Code of Criminal Procedure, 1882.*
450. Commissioner of Police of Chennai is also empowered as the Additional District Magistrate of Chennai under a Government Order -G.O.Ms.No.736 dated 28.04.1974 issued by Home Department, Tamil Nadu Government.
451. Learned Senior Counsel Dr.Rajeev Dhavan contended that when there was serious Law and Order problem which was likely to breach public peace, to maintain public order, Police can exercise the power subject to the provisions in Cr.P.C. Learned Senior Counsel further contended that the Commissioner as Executive Magistrate had a statutory right to disperse the assembly if it was unlawful and even if it was not an unlawful assembly, Police had a statutory right to do so, if in their opinion the 'unlawful assembly' was likely to cause disturbance of public peace and conducted itself in such a manner showing determination not to disperse.
452. Sections 129 and 130 Cr.P.C. give guidelines for dispersal of unlawful assembly by use of civil Force. Learned Senior Counsel Dr.Rajeev Dhavan urged that to control the 'unlawful assembly' of lawyers and to protect the premises and also the Police Station and to ensure public order within the campus, Police officers acted in accordance with Secs.129 and 130 Cr.P.C. Learned Senior Counsel further submitted that as per Sec.132 Cr.P.C., no person acting in 'Good faith' under Chapter X of Cr.P.C., is liable to be criminally prosecuted except with the sanction of Central or State Government as the case may be.
453. Section 129 Cr.P.C. would permit any Executive Magistrate or Officer-in-Charge of a Police station or in the absence of any Officer-in-Charge, any Police officer, not below the rank of Sub-Inspector to command the unlawful assembly likely to cause a disturbance of the public peace, to disperse. If on such command being given the assembly does not disperse, the Executive Magistrate or the officers referred to in Sub-section (1) may proceed to disperse such assembly by force. The underlying intention of section Section 129 Cr.P.C. appears to be to disperse the assembly with the minimum amount of force and as little injury as possible. If the assembly shows no disposition to disperse quietly, force may be employed to disperse it and it would be permissible to require any male person to render assistance. The section, however, emphatically declares that such male person shall not be an officer or member of the armed forces and acting as such. The section indicates clearly that in order to disperse the crowd it is permissible to arrest and confine in jail the person constituting the unlawful assembly. Thereafter, the arrested persons can be punished according to law. It is only when action taken under Section 129 fails to disperse the assembly, that an Executive Magistrate of the highest rank who is present may cause it to be dispersed by armed forces.
454. According to Police, about 150 lawyers gathered and there was indiscriminate stone pelting. Learned Senior Counsel submitted that the common object of the unlawful assembly is to be deduced from unruly behaviour of lawyers in pelting stones from all sides and since lawyers indulged in stone pelting and because of resistance in execution of law, Police officers arrived at 'subjective satisfaction' to declare the assembly as "unlawful assembly". Contending that the satisfaction of declaring the gathering as 'unlawful assembly' and quantum of Force to be used has to be left to the Officers, the learned Senior Counsel submitted that Court cannot substitute its own Judgment for the subjective satisfaction of the Police officer who was in the midst of a grave situation and was trying to maintain Law and Order.
455. Contending that Court must give leeway to Police to assess 'Threat Perception' and not substitute their own discretion for that of the Police, learned Senior Counsel placed reliance upon (1997) 7 SCC 91 [Amitabh Bachan Corporation Ltd., v. Mahila Jagran Manch wherein the Supreme Court held as under:-
"The High Court should have realized that the rights of the organisers and other members of the society had to be protected if a law and order situation was created on account of such agitation, demonstration, etc. If for dealing with the threat to law and order, the State Government was required to use its Police Force or Security Forces, it was not proper on the part of the High Court to interfere and give directions in regard to the type of force to be used because it is very difficult in such situations to visualize what shape the demonstration and agitation may take and the type of law and order situation which may have to be dealt with. To restrain the State from using the BSF or the Armed Forces, it necessary would in certain situations create a very serious problem as the State would not be able to deal with it in case it turns ugly. This is not an area where the Court should exercise its jurisdiction and issue directions because it is difficult to anticipate how the situation will develop in course of time. This is a function which must be left to the executive as the judiciary is not equipped to deal with it."
In the said case, providing security in relation to conducting 'Beauty Pageant' was the subject matter. While issuing certain directions to the State Government, Division Bench of Karnataka High Court directed that the Police security shall be provided only from the State Police Force and the Government shall not requisition for deployment of any other force except with the permission of the Court. In such facts and circumstances, Supreme Court held that it was not proper on the part of High Court to interfere and give directions in regard to the type of Force to be used because it is very difficult in such situations to vizualize what shape the demonstration may take. The above decision of the Supreme Court cannot be applied to the case on hand as in the instant case, the very deployment of Police strength inside the High Court campus is in question.
456. Learned Senior Counsel would further submit that sequence of events the lawyers were involved, the Police officers evaluated 'Threat Perception' and declared them as "unlawful assembly". The learned Senior Counsel submitted that resistance to carrying out the legal process or to the execution of legal process is deemed to be illegal and the Police officers cannot said to have acted in malafide warranting either Contempt proceedings or other proceedings. It was argued that earlier, B4-High Court Police Station was attacked at least two times. Therefore, it necessitated the Police to act and no malafide could be attributed to the Police. Learned Senior Counsel mainly urged that Courts must give police the leeway to assess the threat perception and not substitute their own views.
457. On the other hand, stand of lawyers is that number of innocent lawyers were taken to custody and when the Policemen were determined to take custody by force, gathering of lawyers resisted the arrest of the innocent lawyers. Mr. S.Prabakaran, President-TNAA, Ms.Vaigai,learned counsel and Mr.R.C.Paul Kanakaraj, President MHAA submitted that to arrest the lawyers without any justification, there were serious encroachment upon the professional discharge of duties and irked by the conduct of Police, lawyers reacted and such gathering of lawyers cannot be said to be an 'unlawful assembly'.
458. The learned counsel Ms.Vaigai submitted that lawyers have acted only in defence raising their protest for illegal arrest of lawyers. Contending that gathering of lawyers would not be an unlawful assembly, the learned counsel Ms.Vaigai placed reliance upon the Judgement 1987 (3) SCC 434 (State of U.P. Vs. Niyamat and others). That was the case where one Dharampuri was taken to Police Custody. The accused thereon came to the place with the object of rescuing Dharampuri from the custody of the constables in which shots were fired. Considering in the light of right of private defence, the Hon'ble Supreme Court has held that the action of the accused thereon at best would only be to rescue Dharampuri from unlawful custody and that there was no unlawful assembly. The lawyers were taken to custody. The lawyers who gathered in numbers raised protest and started pelting stones. We do not propose to go into the question, whether lawyers had any such right of private defence and whether, the gathering would not constitute an unlawful assembly. Such questions are to be investigated and examined in Crime No.15/2009 [R.C.No.1(S)/2009/CBI/SCB] now seized up by CBI.
459. By seeing the Videos, we have seen both sides have pelted stones and trying to get their best. What would be an unlawful assembly is defined under Section 141 IPC. Under this section an assembly of five or more persons is designated as unlawful assembly, if the common object of the person composing that assembly is to overawe by criminal force, or show of criminal force, the Central or any State Government, or any public servant in the exercise of the lawful power of such public servant. Whether lawyers taken to custody are innocent lawyers; whether lawyers could so act resisting the arrest and whether the gathering of lawyers constitute 'unlawful assembly' are the points to be investigated in Crime No.15/2009 [R.C.No.1(S)/2009/CBI/SCB] now seized up by CBI. Now we are concerned with whether the Police was justified in deploying the Police Force of various cadre including TN Commando Force and whether Police acted in 'good faith' in deploying the Armed Police and indulging in pitched battle.
460. Judicial Review of Threat perception and use of force by Police:-
Learned Senior Counsel Dr.Rajeev Dhavan submitted that judicial review on use of force by Police is limited and that Courts cannot substitute its own judgment for the subjective satisfaction of the police officer who is in the midst of grave situation trying to maintain law and order. Learned Senior Counsel would further submit that the test is to see whether the Officer has acted in a good faith without exercising due care and attention and what a prudent officer would do in such circumstances. Learned Senior Counsel would further submit that the criteria for testing the good faith would be:-
(i)apprehension of breach of peace;
(ii)reasonable due care and attention;
(iii)While so, acting and in good faith, whether there was any error of judgment. The learned senior counsel mainly urged that the officers acted with due care and attention apprehending breach of peace and therefore, the protection under Section 132 Cr.P.C. is available to CoP and other officers.
The main plank of argument was that the Court cannot substitute its view as to apprehension of peace and nature of force to be used to quell the mob.
461. Section 132 Cr.P.C. gives protection to persons. Section 132, clauses (b) and (d) provide that no officer acting under Section 131 in good faith and no inferior officer, or soldier, sailor or airman in the armed forces doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby committed an offence. ... This section gives protection to persons against prosecution for any act purporting to be done under Ss. 129-131, except with the sanction of the State Government or the Central Government. The protection conferred by this section will be rendered nugatory if the onus is to be thrown on persons to prove at the trial that they acted under the relevant sections. This could not have been the object of the Legislature when it provided safeguards for the protection of public servants while they were acting in the discharge of their duties. The deeming provision of sub-section (2) takes the bona fide acts of the Executive Magistrate, police officer, officers and members of the armed forces and persons bona fide acting in compliance with requisition made under Section 129 or Section 130, out of the category or offence".
462. In Nandigram's case [Association for Protection of Democratic Rights v. State of West Bengal and others [2007 (4) CHN 842], a reference has been made as regards PANCHAM LAL's [Pancham Lal v. Dadan Singh * 1979 Cr. LJ 1018] case, in which it has been held as follows:-
"In the case of Pancham Lal, the Patna High Court has held that the Officer on the spot would be the best Judge of the degree of force which would be required to control a particular situation. It is quite different from sitting and calculating in a cool and serene atmosphere of a Court room dissecting the acts and counter- acts alleged by parties. This observation has been approved by the Supreme Court in the case of Akhilesh Prasad v. Union Territory of Mizoram * 1981 CrlLJ 407. Again in the cases of Empress v. Tucker , Norman & Thompson reported in Indian Decisions (7) Bombay 28 and D.N. Srivastava, IPS v. Shri Pathajoy Das and ors * 1983 Crimes 248, it has been held that the opinion of the policemen as to what steps would succeed in diffusing the situation are relevant. "
463. In Nandigram's case, (cited supra), the Division Bench of Calcutta High Court retained judicial review, but, reiterated the view that the Officer on the scene is the best judge of the situation and the quantum of force to handle the same. Learned senior counsel laid emphasis upon the following observation in para 63 in Nandigram's case, which reads as follows:-
".......... Indeed, the officer on the scene would be best judge as to the amount of force to be used, in a particular situation. This would not preclude the Court from exercising its power to judicial review. The aforesaid cases are wholly irrelevant for the decision in this case.
464. We agree with the submission of the learned senior counsel Dr.Rajeev Dhavan that power of judicial review as to the actions of the police is very limited. We are conscious of the fact that when a decision regarding use of force by police has to be taken on the spot, it is not possible to weigh with precision and accuracy the minimum force required to disperse an unlawful assembly.
465. In Nandigram's case, the Court has dealt with police firing on the agitating farmers protesting against acquisitions lands in which atleast 14 people died and number of them were injured. Even in Nandigram's case, the Division Bench of Calcutta High Court has held that,
"....................... All actions of the police would have to be justified, to have been lawfully taken under a procedure established by law. That procedure would have to be just fair and reasonable. Article 21 of the Constitution makes provision for protection of life and personal liberty of all persons within the territory of India."
466. Even though the Police Officers in the field were the best Judges as to the action to be taken and nature of force to be used, police action is not beyond the pale of judicial review. A discretionary power is one which is exercisable by the holder of Authoritative power on subjective satisfaction of appliance of his intelligentia mind on evaluation of facts, prevailing circumstances governing the situation and imminent necessity warranting for operation of his empowerment as well as his answerability and responsibility to the situation. The aforesaid onerous public official responsibility of his, must not be arbitrary, fanciful and influenced by extraneous considerations. In matters of discretion like this, the choice must have to be dictated by public interest, to safeguard law and order as well as public tranquility and it must not be unprincipled or unreasoned. Reasonableness and non-arbitrary exercise of discretion is an inbuilt requirement of the law and the discretion must be exercised reasonably.
467. In our considered view, certainly the action of the police officers are to be tested on the following questions:-
Was it necessary to mobilize the additional strength drawing force from TSF, QRT, SAG, TNCF in the High Court?
Was the Police action justified in deploying large number of police personnel even during court's working time?
Whether due procedure was followed in disbursal of alleged unlawful assembly of lawyers?
Whether the police personnel were justified in indiscriminately lashing out lathi charge on the lawyers and others irrespective of whether they are miscreants or not?
Whether the police acted in accordance with police standing orders and whether reasonable force was used?
468. We have already narrated the ugly incident/ fact situation which persisted for atleast 3 * 4 hours. From CD-R2 produced by Addl. CoP Mr.Viswanathan, it was seen that the police personnel entered the corridors of Court buildings (firstly one team entering in the City Civil Court Annex building at 16.02 hours), even when the Courts were functioning. The police personnel were not justified in entering the corridors of Court even while the Courts were functioning. As we pointed out earlier, Registry has clarified that no permission was given by the ACJ or Registrar General to the police to enter the premises.
469. The Constitution is based on the Rule of Law. The question before us is whether the police were justified in entering the Court buildings even when Courts were functioning and committed excess and whether there was arbitrary exercise of powers, like any other incidents or case. In the instant case, it is not a question of mere police excess. By committing excess, police have hampered the administration of Justice. It is really the Majesty of the Institution is in peril. We cannot accept the contention of the police that sporadic stone pelting by lawyers has created serious law and order problem which justified deploying of additional police force. Having regard to the gravity of the situation and keeping in view the number of persons injured and the damage caused to the Court buildings and the properties and the vehicle, the Court cannot afford to sit by limply, while those who committed excess go scot-free. Of course, the police officers are vested with discretion to decide as to the proper action to be taken and as to the amount of force to be used in particular situation. Merely because such discretion is vested with the Officer, the Court cannot fold its hands in despair and declare that the powers of Judicial review is very limited. If the police acted arbitrarily in an absolute disregard of constitutionalism and the police standing orders, they can be challenged by seeking judicial review. So long as the question arises that the police have committed excess and exceeded their limits, it is always open to the Court to lift the veil and decide whether there was good faith and whether the officer has acted with due care and attention.
470. In the case of Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble (2003) 7 SCC 749, while considering the criminal appeal against the conviction under Section 302 IPC, where the deceased died of injuries received during the police custody, even though evidence was not sufficient to convict the police man concerned under Section 302 IPC, the Supreme Court inter alia issued directions for payment of compensation to the heirs of the deceased against the State.
471. Expressing concern over diabolic recurrence of torture, quoting Abrahim Lincoln, the Supreme Court held as follows:-
1........ "If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time", said Abraham Lincoln. This Court in Raghbir Singh V. State of Haryana (1980) 3 SCC 70: 1980 SCC (Cri)526:AIR 1980 SC 1087 took note of these immortal observations (SCC p.72, para 4) while deprecating custodial torture by the police.
2....... The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Articles 5 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.
3. If it is assuming alarming proportions, nowadays, all around, it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from rooftops to be the defenders of democracy and protectors of people's rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace-loving puritans and saviours of citizens' right.
4........ This Court has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice Brandeis' observations which have become classic are in the following immortal words;
Government as the omnipotent and omnipresent teacher teaches the whole people by its example. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself. (In Olmstead V. United States 277 US 438:72L Ed 944 (1928), US at P.485, quoted in Map V. Ohio 367 US 643:6L Ed 2d 1081 (1961), US at p.659.)
5.The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because the guardians of law destroy the human rights by custodial violence and torture, invariably resulting in death. The vulnerability of human rights assumes a traumatic torture when functionaries of the State whose paramount duty is to protect the citizens and not to commit gruesome offences against them, in reality perpetrate them. The concern which was shown in Raghbir Singh case [RAGHBIR SINGH v. STATE OF HARYANA * (1980) 3 SCC 70] more than two decades back seems to have fallen on deaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in Gauri Shanker Sharma v. State of U.P * 1990 Supp SCC 565, Bhagwan Singh v. State of Punjab * (1992) 3 SCC 249, Nilabati Behera v. State of Orissa * (1993) 2 SCC 746, Pratul Kumar Sinha v. State of Bihar * 1994 Supp (3) SCC 100, Kewal Pati v. State of U.P.- (1995) 3 SCC 600, Inder Singh v. State of Punjab * (1995) 3 SCC 702, State of M.P. v. Shyamsunder Trivedi * (1995) 4 SCC 262 and by now a celebrated decision in D.K.Basu v. State of W.B. - (1997) 1 SCC 416 seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody. "
472. The right to life and liberty is guaranteed under Article 21 of the Constitution of India. Right to life and liberty have been given unique place in the scheme of the Indian Constitution. Fundamental Rights are so important that they occupy unique place in all civilized societies. Therefore, any apprehension of the fundamental rights must be strictly in conformity with the Law validly enacted by a competent legislature. We are of the view, the action of the police in using the force to disburse unlawful assembly and the order of lathi charge cannot be said to be beyond the pale of judicial review.
473. As we pointed out earlier, the police strength was mobilised from TSP, QRT, SAG and TNCF. That apart, number of officers in the ranking of JCs, DCs, ADCs and ACs and Inspector of Sub Inspectors were also drawn. As pointed out earlier, as per the Man Power Chart, the total strength mobilised was 147+118+26=291 apart from the strength of 130 already in High Court. When the acts of police affected the fundamental rights, injuring many lawyers, litigants and courts staff, apart from causing damage to the court buildings and properties, it is for the Court to go into the decision making process who were responsible for such excess. It cannot be said that the nature of force to be used was within the discretion of the police officers which is beyond the pale of judicial review. The main question falling for our consideration is whether the police acted illegally, unjustifiably affecting the Majesty of the Institution and thereby committed contempt of Court. Let us consider the question of threat perception on which the police try to justify using the force.
474. We proceed to consider the same on the following aspects.
Alleged threat perception and necessity for deployment of police personnel for disbursal of unlawful assembly.
Whether the procedure contemplated under the police standing orders for disbursal of unlawful assembly was duly complied with before ordering lathi charge.
Whether unreasonableness vitiates the action of the police.
475. Learned senior counsel Dr.Rajeev Dhavan submitted that from 2001 to 2009, lawyers were involved in number of cases and the Court cannot ignore the political activities in the campus. Submitting that the court will have to come to terms with the root cause, the learned senior counsel contended that the action on 19.2.2009 has to be viewed in the context of such political activities of a group of lawyers which is in total violation of the directions of the Constitution Bench in Harish Uppal's case. Learned senior counsel would further submit that while examining the acts of the police, the Court has to keep in view the directions passed by the First Bench in W.P.No. 7646 of 2006. It was further submitted that in view of large number of cases registered against the lawyers and their past conduct, the police officers had threat perception and that the threat perception is based on ample materials. Learned senior counsel would further submit that the egg throwing incident on Dr.Swamy on 17.2.2009 has further contributed to the threat perception.
476. It was mainly argued that the acts of the police on 19.2.2009 cannot be examined in isolation and has to be read in the background of defiant conduct of the lawyers. We are unable to accept the above contention that the incident on 19.2.2009 has to be viewed in the background of number of cases registered against the lawyers in the past. As we pointed out earlier, the lawyers resumed work on 19.2.2009 and courts were functioning normally from morning. Earlier acts of lawyers or cases registered against them cannot colour the incident on 19.2.2009. In our considered view, earlier conduct of lawyers cannot justify the police excess on 19.2.2009. Most of the cases registered against lawyers are either under investigation or pending trial. In our considered view, the past conduct of the lawyers cannot be said to be a reasonable threat perception to deploy large number of Police personnel and lathi charge.
477. The learned Senior Counsel Dr.Rajeev Dhavan submitted that in view of serious law and order problem and brewing tension to avoid deterioration of the situation, Police was left with no other option but use the required minimum force to maintain order and to disperse unlawful assembly. The learned senior counsel further submitted that the reasonable apprehension of Police could be seen from subsequent developments of setting fire to B-4 Police Station. Setting fire to Police Station was post lathi charge. That cannot be the test for chasing of lawyers and use of force even from 15:53 hours.
478. The boycott of courts from 29.1.2009 was to express solidarity with the victims of Anti Tamil Genocide by Srilankan Government and demanding Indian Government to stop the genocide in Sri Lanka. There was an unseemly incident on 17.2.2009 regarding which the advocates came to surrender in B4-High Court Police Station on 19.2.2009 insisting of registration of a case against Dr. Subramaniam Swamy. In our considered view, there was no justification to deploy posse of policemen when a group of lawyers came to surrender. The lawyers were forcibly taken into custody. Even after taking the lawyers to custody, there was no need for retaining posse of policemen in B4-High Court Police Station situated within the campus.
479. In his counter affidavit, the Addl. CoP Mr.Viswanathan has averred that they have suggested to the CoP that it would be prudent to withdraw the police force. Retention of the police force even after the arrest of the lawyers seems to be against the suggestion of Mr.Viswanathan and other officers. Atleast when there was stone pelting from all directions, between 15.47 and 15.53 hours, the police force could have been withdrawn and taken outside the High Court premise keeping in view the functioning of the courts. By deploying and retaining the police personnel, police officers have not acted in good faith and have not exercised due care and attention. On the other hand by throwing back stones and by retaliating Police acted as provocateurs.
480. Lathicharge * Whether PSO was followed
Whether reasonable force was used :-
After the lawyers were taken to custody, from 15:47 hours there was a protest. At 15:49:49 hours, stone pelting by the lawyers by taking position in the corridors. For about five minutes, there were stone pelting from all directions and it was a free fight both for lawyers and the Police. At about 15:53:35 hours, there was first chasing of lawyers. According to lawyers, there was lathicharge even at that time. From the Video, it could not be ascertained whether there was lathicharge at that point of time. From the CD-R2 produced by Mr.Viswanathan-Addl. CoP, it was seen that first time the Police officers went inside the City Civil Court Annexe building at 16:02:53 hours. As we have pointed out earlier, there was lathicharge on private party Mr.Sivakumar and Advocate Mr.Mohanakrishnan at 16:24 and 16:26 hours respectively. At 16:39:29 hours, there was vigorous chasing of lawyers by the Police. At 17:05 hours teargas was fired followed by lathicharge.
481. In his counter-affidavit Mr.Prem Anand Sinha-DCP has averred that in consultation with Addl. CoP Mr.Viswanathan and JCP(North) Mr.Ramasubramani, ordered the Police personnel to make "lathicharge" to disperse the unlawful assembly and to return back after the chase. Mr.Viswanathan, Addl. CoP has denied any such consultation. In the Videos, we have seen that lawyers are standing on the other side and pelting stones towards the Police which was quickly thrown back by the Police towards the lawyers. As such we do not find any declaration declaring the gathering as 'unlawful assembly' nor any warning was given prior to unlawful assembly. At about 17:02 * 17:03 hours, lawyers in huge gathering showing hand signal "not to pelt stones" were found proceeding towards the Police. In the CD-R2 produced by Mr.Viswanathan, we have also seen some of the Chowkidars with official headgears seen coming along side lawyers indicating arrival of some of the Hon'ble Judges. But there seem to be no relenting by the Police. Even at that time there was incessant stone pelting by the Police and chasing followed by lathicharge. Only signal before chasing, was the mass pelting of stones by the Police towards lawyers and chasing them and lashing out lathi blows. In Para (37) of his counter-affidavit, CoP averred that "having learnt about fresh tension around 17.00 hours, he immediately rushed from the Esplanade Gate area towards the riotous scene and personally started handling the situation". As we pointed out earlier, at 17:05 hours there was another spell of lathicharge. Before chasing the lawyers and lashing out blows [17:05:38 hours] between 17:03 * 17:05:34 hours, there was incessant stone pelting of stones by the Police.
482. In the CD-R1 produced by the Respondents, the slides showing arrival of Judges with their Chowkidars and lawyers proceeding towards the Police showing hands "not to pelt stones" were edited. Only from the CD-R2 produced by Mr.Viswanathan, Addl. CoP, we were able to see that Advocates and couple of Chowkidars are marching towards the Police persuading them with hand signal 'not to pelt stones'. The response from the Police was only mass pelting of stones between 17:03 * 17:05:34 hours followed by lathicharge. As we have pointed out earlier, from the call logs of Commissioner, CoP was very much available inside the High Court premises even from 16:43:50 hours. In his counter-affidavit, CoP has not averred anything regarding the declaration of unlawful assembly at that spell of lathicharge (17:05 hours).
483. Dr. Rajeev Dhavan, the learned Senior Counsel submitted dealing with preservation of peace under Tamil Nadu Police Standing Orders [PSO] 698, it is duty of the Police to collect information about the movement and that failure in their performance of their duty will be severely noticed and the Police have acted in accordance with Police Standing Orders in taking precautionary measures and preventive actions and Police officers cannot be faulted for taking such precautionary measures. The main plank of argument is that Police acted in accordance with Police Standing Orders.
484. Chapter X of Cr.P.C. lays down the procedure that is required to be followed in the dispersal of unlawful assemblies either by use of Civil Force or Armed Force. Sec.129 Cr.P.C. uses the word 'Force in a broad sense' and in order to regulate the use of such Force and the manner in which should be used Tamil Nadu Government issued Police Standing Orders [PSO]. PSO 699 stipulates preventive action and PSO 703 deals with dispersal of unlawful assembly.
485. The learned Senior Counsel has drawn our attention to PSO 698(2) & (5); 699 (1) and PSO 700 (9) which read as under:-
"PSO 698 * Watching for developments:- (2) One of the most important duties of the Police is the collection of information about every movement, state of feeling, dispute or incident which may lead to breach of peace and the communication of such information to the District Collector. Failure in the performance of this duty will be severely noticed.
(5) But, generally speaking when tension is really acute, experienceis very definitely in favour of taking excessive rather than inadequate precautions, since these tend to inspire confidence in the weaker party and caution in the stronger one. They also tend to check the ardor of the inflammatory elements on both sides.
"PSO 699 Preventive Action:- (1) When a breach of the peace is anticipated, the Police should take timely action under the preventive sections of Chapter XI and XII of the Criminal Procedure Code, and under the provisions of Sections 30 and 30A of the Police Act, 1861 (Act V of 1861). First report made to the Magistrates with a view to action being taken under Sections 144 and 145 of the Criminal Procedure Code should be made on the First Information Report form and subsequent reports on case diary forms, as in ordinary cases under the Indian Penal Code and copies sent to the superior Police Officers concerned.
"PSO 700 (9) When clashes occur:- If a clash occurs immediate and vigorous action may nip the trouble in the bud and prevent it from spreading. If it is possible to make arrests, these will have a good effect. Where the clash take the form of mob fighting, there should be no hesitation to disperse by force or to resort to firing, if life is seriously endangered, the provisions of the law in their respects being, of course, observed. Procrastinating and feeble parleying for long periods often lead to the heightening of tension and worsening of the situation. This is frequently so because lack of prompt firmness and decision is interpreted as weakness and vacillation on the part of the authorities, which it frequently actually is."
486. PSO 703 stipulates standing orders for dispersal of unlawful assembly in consonance with Sections 129 and 130 Cr.P.C. The Police draws its authority to declare and disperse unlawful assemblies. The relevant clauses in PSO 703 (1) (a) (b) (g) & (h) reads as under:-
"(1)(a) It is the bounden duty of the Police to prevent cognizable offences as per Section 149 Cr.P.C. which is as follows:
"Every Police Officer may interpose for the purpose of preventing and shall to the best of his ability, prevent, the commission of any cognizable offence".
(b) The police draws its authority to declare and disperse unlawful assemblies from Section 129 Cr.P.C.,
"Any Executive Magistrate or Officer in-charge of a Police Station or, in the absence of such Officer in-charge, any Police Officer not below the rank of a Sub-Inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause disturbance of the police peace, to disperse, and it shall there upon be the duty of the members of such assembly to disperse accordingly.
If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or Police Officer referred to in Sub-section (1), may proceed to disperse such assembly by force, and may require assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly and, if necessary, arresting and confining the persons who form part of it in order to disperse such assembly or that they may be punished according to law."
...........
(g) The procedure to be followed in dealing with unlawful assemblies is laid down in the "Drill and Training Manual" Section 123-Drill instruction for dealing with crowds, riotous, mobs etc. and in section 126-Mob, firing small parties of Police.
(h) All Police Officers should be fully conversant with the above noted provisions of law which enumerate their rights and responsibilities in dealing with unlawful assemblies and with the drill procedure as laid down in the Drill and Training Manual.
487. PSO 702 (2) (3) & (4) elaborates upon Standing orders for dispersal of unlawful assembly and use of minimum necessary force. PSO 703 (2), (3) and (4) read as under:-
"2 (a) When a Magistrate is present, an assembly shall not be called upon to disperse nor shall force be used to disperse it without the order of such Magistrate; provided that if a gazetted Police Officer is present in the absence of the Magistrate, such Police Officer may act independently in ordering an assembly to disperse.
(b) If an Executive Magistrate is present at the spot, it shall be his responsibility to declares the mob unlawful and direct them to disperse. If the members of the unlawful assembly do not disperse the Executive Magistrate shall direct the Police to use force that is necessary for the purpose. The nature of force to be used. Tear gas, lathi-charge or water jet and the method and quantum of force to be used should be decided by the senior most Police Officer present on the spot. Thereupon the Executive Magistrate shall not interfere with the physical operation of mob dispersal.
(c) In the absence of an Executive Magistrate, the senior most Police Officer not below the rank of Sub-Inspector will carry out the functions of the Executive Magistrate in addition to his own.
(d) If any Police Officer below the rank of a Sub-Inspector is faced with a mob, he shall exercise his right of private defence, taking particular care not to exceed his rights.
(e) All commands to the Police are to be given by Officer-in-Command of the party.
(f) The main principle to be observed is that the minimum necessary force to achieve the desired object should be used regulating it according to the circumstances of each case. The object of the use of force is to prevent disturbance of the peace or to disperse an assembly which threatens such disturbances and has either refused to disperse or shows a determination not to disperse; no punitive or repressive considerations being permitted to become operative while this is being done.
(g) Having decided on the kind of force to be used the Officer-in-charge of the Police will be responsible for deciding as to the exact amount of the force to be used, the manner of using it and for setting the details of the operations connected with the use of force the Police Officer should, of course, bear in mind the principle that no force more than is necessary should be used.
(h) If the members of the unlawful assembly do not disperse, the Executive Magistrate or the senior most Police Officer present in the absence of the Executive Magistrate shall direct the Police to use force, that is necessary for the purpose. The nature of force to be used, tear gas, lathi cane charge or water jet and the method of quantum of force to be used should be decided by the senior most Police Officer present on the spot.
(i) If the crowd refuses to follow the lawful instructions to disperse, the riot flag should be raised, the attention of the mob drawn through a bugle call with long blast and a clear warning that force would be used to disperse them will be given through megaphone. The operation will commence if the mob refuses to head to the warning.
(j) Officers commanding police parties will on every occasion when employed in the suppression of a riot of enforcement of the law, ensure that the fullest warning is given to the mob in a clear and distinct manner before any order is given to use tear gas or lathi/cane or fire arms and to use the most effectful means to explain before hand to the people opposed to them, in the event of the Police party ordered to fire that the fire will be effective.
(k) If any or all these method fail to disperse the mob and if in his opinion nothing short of firing can disperse the mob, the Executive Magistrate will order fire to be opened. Again the manner in which firing is to be directed against the mob, type of ammunition to be used and the method of firing are the individual responsibilities of the senior most Police Officer.
3. If the crowd becomes defiant tear gas should be used effectively. If this becomes in fractious then lathi can charge can be made. If the crowd is still defiant resort, may be had to the use of fire arms".
4. (a) It is not necessary that on every occasion tear gas should be used. Use of tear gas will depend on the availability of a sufficient stock of gas ammunition, wind direction, nature of the neighbourhood and availability of escape routes for the mob. On no account should gas be used in poor visibility especially between sunset and sunrise, and inside buildings or when the wind direction is such that the smoke will affect the Police party or innocent people in the vicinity or when the mob is too close to the Policy party.
.........
(e) If water jets or tear gas fail to disperse the mob, lathi cane charge should be ordered. Lathi/Cane charges should not be attempted if the strength of the Police force is not adequate to create an effect on the crowd and the crowd is likely to overhelm the Police party easily. The personnel engaged in the lathi/cane charge should be under the proper control and the charging should cease as soon as the desired objective is achieved. The procedure laid down in the Drill and Training Manual will be followed. Care should be taken to prevent the lathi/cane sections getting separated from the main party and the Commander."
488. As per PSO 703 (2) (b) if Executive Magistrate is present at the spot, it shall be his responsibility to declare the mob unlawful and direct them to disperse. As we pointed out earlier, we do not find any such declaration of gathering as 'unlawful assembly' before ordering lathicharge. In Para (38) of the counter-affidavit, CoP averred that after B4-High Court Police Station was set on fire by the Advocates and when stone pelting continued, at 17:45 hours in consultation with the other Officers present on the spot, a collective decision was taken to disperse the unlawful assembly which indulged in stone pelting preventing the arrival of Fire tender vehicle. Thereafter, there was chasing of lawyers followed by lathicharge. Other than the above, we do not find any other averments declaring the gathering as 'unlawful assembly'.
489. For the earlier spells of lathicharge, there was clear violation of the requirement of PSO 703 (2) (b) declaring the gathering as unlawful assembly. None of the recorded Videos show that any prior warning was given. Absolutely, there was no order declaring it as 'unlawful assembly' or warning that Police is going to resort to lathicharge. The procedures stipulated in Police Standing Orders was neither followed nor reasonable Force was used to disperse the gathering. It was mindless pelting of stones by the Police followed by lathicharge.
490. As per PSO 703 (2) (b) * "Executive Magistrate to direct the Police to use force necessary for the purpose and nature of force to be used". The procedure to be followed in dealing with the unlawful assemblies is laid down in Drill and Training Manual and the procedure thereon will have to be followed. As per PSO 703 (4) (e) * "care should be taken to prevent the lathi/cane sections separated from the main party and the Commander. Seemingly, no one was in command leading lathi/cane sections. What we have seen in the Video is each one of Police personnel of lathi/cane sections going in their own way and indulging the mindless attack of lawyers, passersby and who came on their way.
491. Excepting the mere allegations that the mob was declared 'unlawful', we could not see anything declaring the mob as an 'unlawful assembly'. As per PSO 703 (2) (j) * "Officers commanding Police parties will on every occasion when employed in the suppression of a riot, ensure that the fullest warning is given to the mob in a clear and distinct manner before any order is given to use teargas or lathicharge". Absolutely, no such warning seemed to have been given before ordering lathicharge.
492. Police violence:-
The degree of force which may be lawfully used in the suppression of an unlawful assembly depends on the nature of such assembly, for the force used must always be moderated and proportioned to the circumstances of the case and to the end to be obtained. But in the incident on 19.2.2009, Police used excessive force in clear violation of PSO 703. By pelting stones lawyers took the law into their own hands. Needless for us to state that lawyers behaved in a most unacceptable manner, but what was the reaction of the Police.
493. No matter how rude or unruly the lawyers were, the Police should not have used extreme force. The riot Police personnel were all steel-helmeted and were having riot shields. Pelting stones by the lawyers though reprehensible, would have hardly affected the Police as they were steel-helmeted. But the Police quickly turned back the stones that came their way at the lawyers and matched the lawyers in their lawlessness. Hardly any Police officer could be seen keep their men under restraint. The most notorious is the actions of the Police going on rampage in the entire premises. Claim of Police that lawyers were rioting would be of no justification for letting loose violence by the Police in the entire campus. Police smashed the glass doors, tube lights and extensive damages to the Courts, Cars/two wheelers and whatever they could hit with lathi.
494. There are some widely known cases of Police excess. But there are thousands of incidents that never received attention. The incident on 19.2.2009 would be remembered for long as a widely known case of Police excess. In the confrontation between Police and Lawyers, in our considered view, Police used wrongful, disproportionate, unlawful and excessive force against the lawyers, litigants, staff and whoever came on their way. The act of the Police attacking lawyers whether they were miscreants or not was a blatant disregard of Police Standing orders. Ofcourse, there was also rioting by handful of lawyers. But the initial reaction by the lawyers can be no argument for the brute force used by the Police. Ofcourse setting fire to the Police Station is a grave offence. But setting fire to Police Station was at 5.45 P.M. after number of spells of lathicharge. Lashing out lathi blows and having sustained injuries, the angered mob set fire to the Police Station. The wrath of lawyers was against the Police. Subsequent events after 5.45 P.M. may not justify the Police excess between 4.00 * 5.30 P.M. Police used teargas, lathicharge to disperse groups of lawyer who were unarmed (though disobedient even disorderly). Police violence led to the extreme situation like break down of law and order in the campus ultimately damage to the Court properties and also closure of Courts. It was mindless attack by the Police on any one who came across and vehicles parked in the campus. Police have ransacked the court buildings and even went up to the Chief Justice chamber and beaten up the lawyers who assembled in the verandah to complain to the Chief Justice. No one was spared.
495. No higher officer/Commando seemed to be in control of the situation. No officer was seen preventing the Police personnel from pelting the stones. No instructions seem to have been given for self-restraint during lathicharge. No efforts were taken to see that lathi/cane sections do not separate from the main party and the commander. There is clear violation of directions in PSO 703 for dispersal of unlawful assembly.
496. Coming to the question of manner the injured were treated and taken to the hospital. Even while taking to the Ambulance, near the Ambulance some of the injured lawyers were mercilessly beaten even though some of them were already profusely bleeding. Some of the injured were seen forcibly dragged and placed in Ambulance.
497. As per Police Standing Orders and instructions, while using lathi/cane sections, as far as possible, the blows should be below the knee. But in clear violation of directions in Police Standing Orders, the riot police inflicted most of the lathi blows on the head as in seen from the Accident Registers. While there can be no possible justification for the assembly of lawyers resorting to stone throwing, we have no hesitation in coming to the conclusion that there was excessive use of force by the Police. There was clear violation of PSO 703 (2) (f) as to use of minimum necessary force.
498. Responsibility of Police:-
Police are subject to the same crowd psychology as any other group of armed men and women, when in large confrontational groups in encounters whose outcome is uncertain, when in the grip of anger, or strong emotion. However, Police carrying deadly weapons and a privileged authority and so have a special responsibility to keep control of themselves and their fellow officers especially since a breach in relations between Police and Civilians can make their jobs impossible and lead to more widespread violence.
499. Any action of the Government or its Officers must be free from arbitrariness and reasonableness. In the case of Maneka Gandhi v. Union of India and another [MANU/SC/0133/1978], it has been clearly held as follows:
"120. To sum up, 'procedure' in Article 21 means fair, not formal procedure 'Law' is reasonable law, not any enacted piece."
500. The aforesaid proposition has been reiterated by the Supreme Court in the case of Olga Tellis and others v. Bombay Municipal Corporation and others [MANU/SC/0039/1985] as follows:-
"39. It is far too well-settled to admit of any argument that the procedure prescribed by law for the deprivation of the right conferred by Article 21 must be fair, just and reasonable [See E.P.Royappa v. State of Tamil Nadu MANU/SC/0380/1973; Menaka Gandhi v. Union of India MANU/SC/0133/1978; M.H.Hoskot v. State of Maharashtra MANU/SC/0119/1978; Sunil Batra v. Delhi Administration MANU/SC/0184/1978; Sita Ram v. State of U.P MANU/SC/0244/1979; Hussainara Khatoon I v. Home Secretary, State of Bihar, Patna MANU/SC/0121/1979; Hussainara Khatoon II v. Home Secretary, State of Nihar, Patna MANU/SC/0119/1979; Sunil Batra II v. Delhi Administration MANU/SC/0184/1978; Jolly George Verghese v. Bank of Cochin MANU/SC/0014/1980; Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir MANU/SC/0079/1980; and Francis Coralie Mullin v. Administrator, Union Territory of Delhi MANU/SC/0517/1981.
40. Just as a male fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is thereafter essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must conform to the norms of justice and fair play. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards. The action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law made which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribes for how reasonable the law is depends upon how fair is the procedure prescribed by it. Sir Raymond Evershed says that 'The Influence of Remedies on Right' (Current Legal Problems 1953, Volume 6.). "from the point of view of the ordinary citizen, it is the procedure that will most strongly weigh with him. He will tend to from his judgment of the excellence or otherwise of the legal system from his personal knowledge and experience in seeing the legalmachine at work". Therefore, "He that takes the procedure sword shall perish with the sword". Per Frankfuter J. In Vitarelli v. Seaton 1959 (3) Law ED 2d 1012.
41. Justice K.K.Mathew points out in his article on 'The Welfare State, Rule of Law and Natural Justice", which is to be found in his book 'Democracy, Equality and Freedom', that there is 'substantial agreement in justice thought that the great purpose of the rule of law notice is the protection of the individual against arbitrary exercise of power wherever it is found'. Adopting that formulation. Bhagwati, J. Speaking for the Court, observed in Ramana Dayaram Shetty v. International Airport Authority of India MANU/SC/0048/1979, that it is "unthinkable that in a democracy governed by the rule of law, the executive Government or of its officers should posses arbitrary power over the interests of the individual. Every action of the Executive Government must be informed with reason and should be free arbitrariness. That is the very essence of the rule of law and its bare minimal requirement."
501. Power of the Police under Police Standing Orders cannot be dissociated from the procedure which it prescribes for reasonable exercise of power in dispersal of unlawful assembly. Learned Senior Counsel Mr. Rajeev Dhavan submitted that from the consequences of Police action viz., photographs of injured lawyers cannot be taken as basis for testing the reasonableness. When there is clear violation of procedure and fundamental rights, the consequences of arbitrariness cannot be ignored.
502. The independence and impartiality of the judiciary is one of the Hallmark of a judicial set up. Courts are the Institutions by which justice is rendered to the people. By setting ablaze to the Police Station and indulging in stone pelting ofcourse, lawyers behaved in a most unacceptable manner. The Courts are not for the individual Judges or lawyers; but the Courts are for rendering administration of justice.
503. If the judiciary has to perform its duties and functions in a fair and free manner, the dignity and the authority of the Courts has to be respected and maintained at all stages and by all concerned, failing which the very constitutional scheme and public faith in the judiciary runs the risk of being lost. The cause is of the public. It is this Police, Justice delivery system depends as one of the important wing in the administration of criminal justice. Police who are supposed to be the protectors of the Institution, barged into the Court rooms damaging the Court properties. Police went berserk in the Court premises and beat any one they came across and smashing the vehicles and the furious attack venting their anger. The violent acts of the Police undermined the Majesty of the Institution. Any time a Police officer abuses his or her authority and inflicts undue suffering on any person, it is an affront, not only to the victim of the pain but to society as a whole. In this case, it is an affront to judiciary. Even slightest disrespect to the judicial system or its Constituents may lead to disastrous effect annihilating the very fabric of Rule of law.
504. Contempt of Court:-
In a democratic society, the three organisation of Government namely the Executive, the Legislative and the Judiciary are expected to perform their function within their limitations for the benefit of the public. No one organisation is expected to interfere with the functioning of the other. Though Judiciary is entrusted with the function of Administration of Justice, it cannot claim superiority over other two organisations and Judiciary has been given all the requirements needed for upholding the majesty of law particularly when it has neither the power of purse nor power of the Police. So through contempt proceedings the Judiciary performs its function of proper Administration of Justice and safeguards the Rule of law. It is fairly well settled that Contempt jurisdiction is extraordinary in character, should not be used for the personal protection of the Judges. The jurisdiction is applied against any authority or person whenever there is any kind of interference in the Administration of Justice and to maintain supremacy of law.
505. As per Article 215 of Constitution every High Court shall be a Court of Record and shall have all powers of such a Court including the power to punish for contempt of itself. While much of the contempt power of the High Courts and Supreme Court has been codified by the Contempt of Courts Act 1971, there remains a reservoir of inherent power which draws from them being Courts of Record, which has not been trammelled by Statute.
506. As per Sec.23 of Contempt of Courts Act, 1971 * Supreme Court and High Courts are empowered to make Rules. Section 23 reads as under:-
"23. Power of Supreme Court and High Courts to make rules. - The Supreme Court or, as the case may be, any High Court, may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to its procedure."
507. Referring to Rule making power of Supreme Court and High Courts, in (1997) 3 SCC 11 [High Court of Judicature at Allahabad v. Raj Kishore Yadav], the Supreme Court held as follows:-
"Contempt jurisdiction is an independent jurisdiction of original nature whether emanating from the Contempt of Courts Act or under Article 215 of the Constitution of India. How such original jurisdiction can be exercised is a matter which can legitimately be governed by the relevant Rules framed by the High Court on its administrative side by exercising its rule-making power under Section 23 of the Act or under its general rule-making power flowing from the relevant provisions of the constitutional scheme as seen earlier."
508. Delhi Judicial Service Association Tis Hazari Court v. State of Gujarat, (1991) 4 SCC 406 : 1991 Cri LJ 3086, facts are too well known to the legal world and need not be recapitulated in detail. It was a case where a Chief Judicial Magistrate was arrested, assaulted and kept in wrongful detention after having been taken to a Police Station. The Supreme Court held that "a Court of justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are entrusted to its care, would be an anomaly which could not be permitted to exist in any civilised community."
509. Before we proceed to consider the question of contempt, we would like to remind ourselves the observation of the Supreme Court in the case of Special Reference [1965 (1) SCR 413] "The power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity of the Court, but may sometimes affect it adversely".
510. Contempt of Court - Civil Contempt:
On 18.3.2009, Court has passed an order directing the State Government to initiate disciplinary proceedings against Addl. CoP Mr.Viswanathan and JCP (North) Mr.Ramasubramani and that they should be placed under suspension. But the officers were not immediately placed under suspension. Onbehalf of the lawyers, it was contended that order of the Court [18.3.2009] was not obeyed by the State Government and therefore, the Chief Secretary and Home Secretary are liable to be proceeded with for Civil contempt for disobeying the orders of the Court.
511. We are unable to accept the above contention. After the orders of this Court dated 18.3.2009, number of Petitions came to be filed before the Supreme Court and the Supreme Court seized up the matter. Challenging the order of suspension on the ground of violation of principles of natural justice, both the officers have filed SLP No.7540/2009 before the Supreme Court. By the order dated 14.7.2009, the Supreme Court set aside the order of suspension and remitted back the matter to the High Court for affording opportunity to both the officers. Having regard to the subsequent developments, we do not find any wilful disobedience of the order of the Court dated 18.3.2009 by the State Government.
512. Lawyers have called for production of call log of CoP and other officers. Call log of CoP was filed without 'Tower details'. Onbehalf of the lawyers, it was therefore submitted that there was disobedience of the Court order by not filing the call logs with correct particulars. Onbehalf of CoP, the learned Government Pleader submitted that on being requested, call log was given without Tower and there was no wilful disobedience of the order of the Court. Subsequently, the call log was filed with Towers. Therefore, we are not inclined to accept the contention that there is disobedience of the orders of the Court.
513. Chief Secretary and Home Secretary:
Placing reliance upon 1994 (6) SCC 442 [Mohd. Aslan @ Bhure, Acchan Rizvi v. Union of India, State of Uttar Pradesh and others], it was contended that when a Government Official has committed contempt of court, State Government are also to be proceeded for contempt of court. Onbehalf of the lawyers, it was contended that in the order dated 19.2.2009, Court has clearly pointed out that ACJ has contacted CoP as well as Chief Secretary requesting them to withdraw the Police forces. But the Police force was not withdrawn; but on the other hand, they came to ACJ's Chamber along with CoP only after 6.00 P.M. and therefore, there is disobedience of the order of Court.
514. Ofcourse, in the order dated 19.2.2009, it is indicated that ACJ had telephonic conversation with CoP and Chief Secretary requesting them to withdraw the Police force. According to the Police to quell the mob, additional strength was deployed in the High Court campus. We have already held that CoP Mr.Radhakrishan, Addl. CoP Mr.Viswanathan, JCP (North) Mr.Ramasubramani and DCP Mr.Prem Anand Sinha have not exercised due care and caution in deploying the police force and retaining them. The time of telephonic conversation with the Chief Secretary is also not indicated in the order dated 19.2.2009. While so, it cannot be contended that State Government has also contributed to the situation.
515. While the matter was heard at 6.40 P.M. on 19.2.2009 in the Chambers of ACJ, the Chief Secretary and Home Secretary who were present have undertaken to abide the orders of the court in referring the matter to CBI. By Notification No.13933/Pol.VII/2009 dated 23.2.2009 under Sec.6 of DSPE Act, 1946 of Home (Pol.VII) Department, Government of Tamil Nadu and Notification No.228/10/2009-AVD-IIdated 28.2.2009 under Sec.5 of DSPE Act, 1946 of Government of India, State Government has referred the case registered against the lawyers in Crime No.15/2009 on the file of B4-High Court Police Station for investigation to CBI. The investigation as to the entire incident and the Police excess and the order of the Court was not referred. Based on the same, CBI has re-registered the case in R.C.No.1(S)/2009/CBI/SCB/Chennai under Sec. 147, 353, 332, 450, 436, 307 IPC and Sec.3 (1) TNPPDL Act.
516. Court order dated 19.2.2009 was not made the basis for referring the matter to CBI. In the order dated 02.3.2009, Court has observed that State has violated the Court's direction in not registering the case pursuant to the Court's order dated 19.2.2009 and asking CBI to investigate the matter as per the Court's order dated 19.2.2009. State Government addressed Government of India, Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions referring to the order passed by the Court on 2.3.2009. Based on the order dated 19.2.2009, CBI has registered the case in R.C.No.2(S)/2009/CBI/SCB/Chennai under Sec. 144, 147, 148, 323, 325, 326, 427, 436 and 450 IPC and under Sec. 3(1) and 4 of TNPPDL Act.
517. Onbehalf of the lawyers, it was contended that there was clear violation of State Government in not referring the entire incident on 19.2.2009 and therefore, State Government has to be proceeded with for civil contempt. Learned Government Pleader tried to explain that without complaint as to the incident on 19.2.2009, the matter could not be referred to. Even though, in the order dated 02.3.2009, Court has observed that State have violated the Court's order dated 19.2.2009, having regard to the fact that subsequently, CBI has registered the case in R.C.No.2(S)/2009/CBI/SCB/Chennai, we do not find any disobedience of the order of the Court committed by the State Government. Prima facie, we do not find any wilful disobedience of the Court's order by the State Government to proceed against the State Government.
518. Contempt of Court * Criminal Contempt:-
Criminal contempt has been defined under Section 2 (c) of the Contempt of Courts Act. Sec.2(c) of Contempt of Courts Act reads as under:-
"2 (c) 'Criminal Contempt' means the publication (whenever by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which -
(i)scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
(ii)prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii)interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
519. Contempt is sui generis. There is no prosecution, no summons or warrant, no right of trial by jury. The judge decides the matter, as in this case, on the basis of his own knowledge of the facts which is the basis of his power.
520. In Baradakanta Mishra v. The Registrar of Orissa High Court, MANU/SC/0071/1973 : 1974 Cri LJ 631, the Supreme Court noted that all the three clauses of Section 2(c) of the Contempt of Courts Act, 1971 that define 'criminal contempt' define it in terms of obstruction of or interference with the administration of justice. It was further noted that broadly the Act accepts that proceedings in contempt are always with reference to the administration of justice. With reference to the three sub-clauses of Section 2 (c) of the Act, the Supreme Court observed that Sub-clauses (i) and (ii) deal with obstruction and interference respectively in the particular way described therein, while Sub-clause (iii) is a residuary provision by which any other type of obstruction or interference with the administration of justice is regarded as a criminal contempt. A little later in the decision citing R v.Gray [1900] 2 QB 36 it was said that the contempt jurisdiction should be exercised 'with scrupulous care and only when the case is clear and beyond reasonable doubt.
521. In 1981 Cri LJ 315 [Rachpudi Subba Rao v. Advocate General], the Supreme Court considered the scope of the expressions 'administration of justice' appearing in Sub-clause (iii) of Section 2(c) of the Act and 'course of judicial proceedings' appearing in Sub-clause (i) and (ii) thereof. It was observed that the expression 'administration of justice' is far wider in scope than the expression 'course of judicial proceedings'. The words 'in any other manner' further extend its ambit and give it a residuary character. It was emphasized that 'although Sub-clauses (i) to (iii) describe three distinct species of 'criminal contempt' they are not mutually exclusive. Interference or tendency to interfere with any judicial proceeding or administration of justice is a common element of Sub-clauses (ii) and (iii).
522. In (2004) 5 SCC 26 [Daroga singh and others v. B.K.Pandey] on 18.11.1997 at Bhagalpur in Bihar, 1st Additional District Judge in his Court room and Chambers was attacked by number of Police officers. Because of non-appearance in Court, NBW was issued against one Investigating Officer-Jokhu Singh and he was remanded to judicial custody. Reiterating their demand for unconditional release of Jokhu Singh, number of Police Officers armed with lathis and other weapons and shouting slogans against the Judicial Officer, barged in to his Court room and overpowered the bodyguard assaulted the Judicial Officer. Based on the report sent by the District Judge, Patna High Court initiated suo moto contempt where Police officers and personnel were found guilty of contempt of court. Observing that the act committed amounts to deliberate interference with the discharge of duty of the Judicial Officer and that it has the tendency to affect the entire judiciary in the country which is a dangerous trend, Supreme Court held as follows:-
"27. In the present case, a judicial officer of the rank of District Judge was attacked in a pre-planned and calculated manner in his courtroom and when he tried to protect himself from physical harm by retiring of his chambers by chasing him there and causing injuries to him. The raising of slogans and demanding unconditional bail for Jokhu Singh further compounded the offence. The courts cannot be compelled to give "command orders". The act committed amounts to deliberate interference with the discharge of duty of a judicial officer by intimidation apart from scandalising and lowering the dignity of the court and interference with the administration of justice. The effect of such an act is not confirmed by to a particular court or a district, or the State, it has the tendency to affect the entire judiciary in the country. It is a dangerous trend. Such a trend has to be curbed. If for passing judicial orders to the annoyance of the police the presiding officers of the courts are to be assaulted and humiliated the judicial system in the country would collapse.
...........
41. In the constitutional scheme the judiciary is entrusted with the task of upholding the Constitution and the laws. Apart from interpreting the Constitution and the laws, the judiciary discharges the function of securing maintenance of law and order by deciding the disputes in a manner acceptable to civilised and peace-loving society. In order to maintain the faith of the society in the rule of law the role of the judiciary cannot be undermined. In a number of cases this Court has observed that foundation of the judiciary is the trust and confidence of the people of the national and when such foundation or trust is rudely shaken by means of any disrespect by the very persons who are required to enforce the orders of the court and maintain law and order the people's perception of efficacy of the systems gets eroded.
42. The judges are * as a jurist calls them * "paper tigers". They do not have any machinery of their own for implementing their orders. People, while approaching the court of law which they regard as the temple of justice, feel safe and secure whilst they are in the court. Police personnel are deployed in the court campus for the purpose of maintaining order and to see that not only the judges can work fearlessly in a calm, cool and serene atmosphere but also to see that anyone coming to the court too feels safe and secure threat. Every participant in court proceedings is either a seeker of justice or one who comes to assist in administration of justice. So is the expectation of the members of the Bar who are treated as officers of the court. We shudder to feel what would happen if the police personnel themselves, and that toc in an organised manner, are found to be responsible for disturbing the peace and order in the court campus, for causing assault on the judges and thus sullying the temple of justice apart from bringing a bad name to an indispensable organ of the executive wing of the State.
43. Police is the executive force of the State to which is entrusted the duty of maintaining law and order and of enforcing regulations for the prevention and detection of crime. (Encyclopaedia Britannica, Vol.58, p.158). The police force is considered by society as an organised force of civil officers under the command of the State engaged in the preservation of law and order in the society and maintaining peace by enforcement of laws and prevention and detection of crime. One who is entrusted with the task of maintaining discipline in the society must first itself be disciplined. Police is an agency to which social control belongs and therefore the police has to come up to the expectations of the society." (Emphasis added)
523. The learned counsel Mr.Raghavachari placed reliance upon 2009 Cri LJ 677 [Courts on its own motion v. State and others] * Suo moto Contempt Petition in the case of Senior Counsel Mr.R.K.Anand. Referring to plethora of decisions, Delhi High Court summarised the emerging principles as important considerations in dealing with the cases of Criminal Contempt of Court as under:-
1.The contempt jurisdiction of a Court is sui generis; it is a special jurisdiction and a summary jurisdiction. The Court is in effect the jury, the prosecutor, the judge and the hangman and so the jurisdiction has to be exercised with great caution and circumspection.
2.Action for contempt may be taken only if there is a substantial interference in the administration of justice. A Court should not be hypersensitive and take umbrage at every trivial misdemeanor. A Court should punish for contempt only if the act of omission complained of is deliberate and contumacious.
3.Proceedings for contempt are quasi-criminal in nature. While it may not be necessary to prove mens rea, but the standard of proof is that of proof beyond a reasonable doubt. This is because an alleged contemnor may be sent to prison for criminal contempt of Court.
4.Since proceedings for contempt of Court are quasi criminal in nature, the alleged contemnor must be duly informed, with sufficient particularity, of the allegations against him so that he may effectively defend himself.
5.A burden of proof is on the person asserting that there is a contempt of Court.
6.The Court is entitled to devise its own procedure for dealing with contempt of Court, and the generally accepted criminal law principles or the Evidence Act are not applicable to such proceedings. However, the principles of natural justice must be adhered to Summary justice may be rough justice, but it should be fair.
We keep these principles in mind before proceeding to consider the contempt committed by the Police Officers and Police personnel.
524. Aftermath of 19.02.2009:-
Let us give a brief sketch how the incident on 19.2.2009 affected functioning of Courts and administration of justice. The violence left scores of Advocates and some of Police personnel, Court staff, litigants injured. Police entering into Court halls and attacking the Court premises, lawyers, Court staff is a serious matter. The incident persisted for nearly 3- 4 hours. The Committee of Hon'ble Judges was appointed to assess the damages caused to the Court property and also to the vehicles. The smashed Cars and other vehicles and mangled remains of damaged Court properties remained as it is for a few days. Glass pieces, vehicles and other articles were found strewn all around the court premises. Because of brewing tension and damages caused to the Court buildings and properties, both Principal Seat and Madurai Bench of Madras High Court remain closed on 20.2.2009, 23.2.2009 and 24.2.2009. City Civil Court, Small Causes Court, Tribunals functioning in the High Court campus remained closed for about one week and the Courts opened only on 02.3.2009.
525. Police entering the court premises and lathicharging the lawyers has also caused ripples in the District Courts and moffusil Courts. Both High Court and District Courts and also moffusil Courts, lawyers staged protest throughout the State. Because of the rift between the lawyers and the Police, the under-trial prisoners could not be taken to the Courts for remand extension and remand extension could not be done.
526. The stand off between advocates and Police personnel had resulted in the Police taking decision not to enter Court premises in many Districts. Resultantly the work of the criminal Courts could not make progress. In Madurai, Court of VIth Judicial Magistrate himself did the Escort work taking the surrendered accused to Prison [Source * The Hindu dated 06.3.2009].
527. As we elaborated earlier, the riot Police barged into the corridors of the Court Halls even when the Courts were functioning. The chaos and confusion in the premises disrupted the Court proceedings. By the mindless attack, Police smashed tube lights, glass doors and whatever they could damage with their lathis. The incident persisted for 3 -4 hours. The gross impropriety committed by the Police on the Court premises and the rank lawlessness they indulged in by resorting to indiscriminate attack on everyone including Judges, litigants and lawyers is clearly an affront to the judiciary.
528. Learned Senior Counsel Mr. Rajeev Dhavan submitted that only to diffuse Law and Order problem and to protect the Court buildings and also B4-High Court Police Station within the premises, the Police had to act using the required minimum force and the Police officers had no personal affront to the Institution.
529. Inherent power of the Court to protect the public in the Administration of Justice and to convict by way of fine or imprisonment had existed in the Courts from time immemorial. In Morris v. Crown Office (C.A) [(1970) 2 QB 114 * Law graduates of impeccable character felt that attention should be drawn to the lack of status and dignity accorded to their mother tongue in Wales. The recommendation of the committee under Sir David Hughes Parry in 1965 in favour of the equal validity of Welsh and English in all departments of public administration in Wales has only been partially implemented through the Welsh Language Act, 1967. Being impatient over the delay in implementation the Appellants decided to invaded the Court. It was clearly prearranged. They had come all the way from their University of Aberystwyth. They strode into the well of the Court. They flocked into the public gallery. They shouted slogans. They scattered pamphlets. They sang songs. They broke up the hearing. The judge had to adjourn. Some of them were sentenced to three months imprisonment for contempt and those who were appealed were imposed fine of 50#. In the said case the contention raised was that the appellants intended no personal affront to the Judge. Observing that whatever be the noble aim of the appellants and affirming the orders of the lower court finding them guilty, Court of Appeals held as under:-
"In sentencing these young people in this way the judge was exercising a jurisdiction which goes back for centuries. It was well described over 200 years ago by Wilmot J. in an opinion which he prepared but never delivered. "It is a necessary incident," he said, "to every court of justice to fine and imprison for a contempt of the court acted in the fact of it." That is Rex v. Almon (1765) Wilm 243, 254. The phrase "contempt in the fact of the court" had a quaint old-fashioned ring about it; but the importance of it is this; of all the places where law and order must be maintained, it is here in these courts. The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power * a power instantly to imprison a person without trial but it is a necessary power. ......" (Emphasis added)
We are of the considered view, the degree of violence unleashed in the High Court campus is clear obstruction and interference in the course of Administration of justice.
530. Responsibility of individual Officers/Role played by individual Officers:
As we pointed out earlier, as per Sec.5 of Chennai City Police Act * Administration of the City of Chennai is vested with the Commissioner. As per Sec.7 of Chennai City Police Act, Commissioner shall be the Executive magistrate within the city limits. Under Sec.6 of the Act, Government appoints Jt. Commissioner of Police/Dy. Commissioner of Police or Asst. Commissioners who shall perform any of the duties or exercise any of the powers assigned to that Officers as Commissioner directs.
531. In his capacity as Commissioner of Police, 7th Respondent has seized up the problem of lawyers' boycott even from 29.1.2009. On 6.2.2009, Commissioner has written a letter in D.O.Lr.No.151/S.B.VII/2009 to the Registrar-General, High Court, Madras narrating various types of agitations indulged by the lawyers in and around the High Court premises. Referring to egg throwing incident and attack on Dr. Subramaniam Swamy, on 18.2.2009 a meeting was convened by ACJ in which DGP-Mr.K.P.Jain, Addl. DGP (L&O)-Mr.Rajendran, CoP-Mr.Radhakrishnan, JCP (North)- Mr.Ramasubramani, DCP-Mr.Prem Anand Sinha, ACP-Mr.Kader Mohideen attended.
532. After safe exit of Dr. Subramaniam Swamy, after the lawyers came to B4-High Court Police Station for surrender, strength of Police personnel (147) was shifted by JCP (North) Mr.Ramasubramani and DCP Mr.Prem Anand Sinha. As pointed out earlier, this initial mistake of shifting the Police personnel from B2-Explanade Police Station to B4-High Court Police Station led to the sordid episode. As we pointed out earlier, there was communication between CoP and JCP(North) between 14:23 * 15:01 hours. From the facts and circumstances, we have no hesitation in holding that shifting of Police personnel (147) from B2-Esplanade Police Station to B4-High Court Police Station must have been with the knowledge of CoP. At 14:45 hours, CoP issued direction to Addl. CoP Mr.Viswanathan to go to B2-Esplanade Police Station to monitor the developments caused by the surrender of Advocates.
533. During the course of arguments, Dr. Rajeev Dhavan, learned Senior Counsel would submit that CoP Mr.Radhakrishnan is one of the distinguished meritorious Police Officer in the State and that he has also addressed the United Nations as to "Harmonious functioning of the Police in the Inter Religious Community Living". Learned Senior Counsel has also submitted that the Officer being a distinguished Officer needs protection from the higher judiciary in his actions done in 'good faith'. As we have discussed earlier, the Officer appears to have acted with obstinate mind. Acting Chief Justice/Registrar-General kept on calling CoP from 16:01 hours requesting him to withdraw the Police Force from High Court campus. What we find is, again and again, the strength in the High Court campus was increased. Being vested with the Administration of City Police, we find the then CoP Mr.Radhakrishnan is squarely responsible for deploying the riot Police inside the High Court campus on 19.2.2009.
534. As we discussed earlier, CoP was present in the riot area even from 16:43:50 hours. Even according to the version of CoP, he entered into the riot area at 17:00 hours. As pointed out by us earlier, from the Video clippings [CD-R2], it was clear that between 17:03 * 17:05 hours there were incessant pelting of stones by the Police inspite of the fact that lawyers were showing hands 'not to pelt stones'; and inspite of the signals that Hon'ble Judges who were coming along with their chowkidars. Inspite of such signals, lawyers were chased and there was lathicharge at 17:05 hours. According to CoP. after Police Station was set fire, a collective decision was taken and lathicharge was ordered at 5.45 P.M. As discussed earlier, there was clear violation of PSO 703. On the basis of the materials produced before us, we are of considered view that CoP being vested with the Administration of City Police was mainly responsible for deploying the riot Police force and violence in the High Court campus and which caused obstruction and interference in the course of Administration of Justice.
535. Being jurisdictional Officers, JCP (North) Mr.Ramasubramani and DCP Mr.Prem Anand Sinha mobilised the strength for providing security in connection with the visit of Dr. Subramaniam Swamy on 19.2.2009. As jurisdictional Officers and being present in the premises from the morning, both these Officers are solely responsible for shifting of strength (147) from B2-Esplanade Police Station to B4-High Court Police Station. Both these Officers are also to be held responsible for not appraising the CoP about the volatile situation. The then JCP (North) Mr.Ramasubramani and DCP Mr.Prem Anand Sinha have committed the initial mistake of shifting the Police strength and thereafter B2-Esplanade Police Station to B4-High Court Police Station and forcibly taking the lawyers to custody and continuing to retain the Police force in the premises. As per lawyers' version, first spell of lathicharge was between 3.30 * 4.00 P.M. From CD-R2, we have also seen that there was chasing of lawyers even at 15:53 hours and damages caused to vehicles. Even from 15:53 hours Police retaliated and no one seems to be controlling the situation.
536. Both JCP(North) Mr.Ramasubramani and DCP-Mr.Prem Anand Sinha have not foreseen the consequences of such shifting and forcible taking of lawyers to custody and thereafter continuing to retain the Police force near B4-High Court Police Station. In our considered view, in shifting the Police personnel from B2-Esplanade Police Station to B4-High Court Police Station and retaining the additional strength in B4-High Court Police Station JCP (North) Mr.Ramasubramani and DCP-Mr.Prem Anand Sinha have not acted in 'good faith' and they have not exercised due care and caution and therefore to be held responsible.
537. As pointed out earlier, at 14:45:18 hours, Mr.Viswanathan, Addl. CoP was directed by the CoP to go to B2-Esplanade Police Station to monitor the developments caused by the surrender of the advocates in B2-Esplanade Police Station. Mr.Viswanathan arrived in B2-Esplanade Police Station at 15:10 hours. When Mr.Viswanathan arrived in B2-Esplanade Police Station, the officer must have learnt about the brewing tension in B4-High Court Police Station. But Mr.Viswanathan has not chosen to proceed to B4-High Court Police Station to monitor the situation; but he has chosen to reach B4-High Court Police Station only at 15:50 hours after the lawyers were forcibly taken to custody. While Mr.Viswanathan, Addl. CoP was in B2-Esplanade Police Station, there were number of calls between Mr.Viswanathan Addl. CoP and Mr.Ramasubramni-JCP(North) and Mr.Prem Anand Sinha-DCP. The call log of Addl CoP Mr.Viswanathan (Cell No.9444000029) is as under:-
919444000029
919444082838
Outgoing
19-2-09
151821
10
919444591110
10392
35898401415079
1039-Flower Bazaar-STR-2
9194440000299
919940455455
Outgoing
19-2-09
152238
120
919444591110
10392
35898401415079
1039-Flower Bazaar-STR-2
JCP(N) calls Addl.CoP
9194440000299
919445300101
Incoming
19-209
152701
40
919444591110
10392
35898401415079
1039-Flower Bazaar-STR-2
DCP calls Addl. CoP
9194440000299
919840566666
SMS Incoming
19-2-09
153132
0
919444591110
10392
1039-Flower Bazaar-STR-2
9194440000299
919840566666
SMS Incoming
19-2-09
153318
0
919444591110
10392
1039-Flower Bazaar-STR-2
9194440000299
919444465555
Incoming
19-209
153505
87
919444591110
10392
35898401415079
1039-Flower Bazaar-STR-2
CoP calls Addl. CoP
9194440000299
919445300101
Outgoing
19-2-09
153651
67
919444591110
10392
35898401415079
1039-Flower Bazaar-STR-2
DCP calls Addl. CoP
9194440000299
919444465555
Outgoing
19-2-09
153812
49
919444591110
10392
35898401415079
1039-Flower Bazaar-STR-2
CoP calls Addl. CoP
9194440000299
919444082838
Outgoing
19-2-09
155017
9
919444591110
10372
35898401415079
1037-High Court-2
9194440000299
919444465555
Outgoing
19-2-09
155049
89
919444591110
10372
35898401415079
1037-High Court-2
Addl. CoP calls CoP
In his counter-affidavit, Mr.Viswanathan, Addl.CoP has not elaborated upon the details of those conversation and what was the instructions/directions given by him to JCP(North) Mr.Ramasubramani and DCP Mr.Prem Anand Sinha.
538. Be that as it may, admittedly Mr.Viswanathan, Addl. CoP had arrived at B4-High Court Police Station at 15:50 hours. Being higher officer, he was in command from 15.50 hours till CoP arrived in the riot area at 16.43 hours. As elaborated earlier, at 15:53 hours, there were stone pelting by the Police and chasing of lawyers. As noted earlier, at 16:25 hours, there was lathicharge on the litigant public Mr.Sivakumar. At 16:26 hours Advocate Mr.Mohanakrishnan was surrounded by number of Policemen and lashed out lathi blows. At 16:39 hours, there was chasing of lawyers followed by lathicharge.
539. In his counter-affidavit, Mr.Viswanathan averred that when trouble was brewing, Police had to chase the angry advocates now and then as ordered by the CoP. Mr.Viswanathan, Addl. CoP has further averred that he contacted CoP number of times at 15:55, 16:04, 16:24 and 16;27 hours seeking permission to withdraw the Police force from High Court Campus.
540. Mr.V.Selvaraj, learned counsel for Mr.Viswanathan submitted that Mr.Viswanathan, Addl. CoP repeatedly suggested to CoP that it would be prudent to withdraw the entire Police force from the High Court premises, but the CoP insisted that Police should not be withdrawn and that the entire Police Station should remain in the High Court campus and protect the Police Station in the High Court premises.
541. In his counter-affidavit, CoP has denied any such suggestion by Mr.Viswanathan, Addl.CoP. By saying that they have simply obeyed the direction of the CoP, Mr.Viswanatha, Addl. CoP cannot avoid his responsibility. As held in 1898 ILR Mds (21) 249 [Queen-Empress v. Subba Naik and others], Police officer is not protected in that as he obeyed the orders of superior officer. It is pertinent to note that Mr.Viswanathan-Addl.CoP and Mr.Ramasubramani-JCP (North) were directed to be suspended by the orders of this Court dated 18.3.2009 which was challenged before the Supreme Court in SLP No.7540/2009. In such circumstances, the value to be attached to the averments in the counter-affidavit filed by Mr.Viswanathan on 27.8.2009 and 16.9.2009 remains to be seen. The officer Mr.Viswanathan, Addl. CoP being in command from 15:50 to 16:43 hours has not exercised due care and caution.
542. We are of the considered view that there are overwhelming materials prima facie to show that the actions of Mr.Radhakrishnan, then CoP; Mr.Viswanathan, then Addl. CoP; Mr.Ramasubramani, then JCP (North) and Mr.Prem Anand Sinha-then DCP, Flower Bazaar caused obstruction to functioning of Courts and interference in the course of administration of justice and therefore, contempt proceedings are to be necessarily be initiated against them. Contempt notice is ordered to be issued to the above Officers under Sec.15(1) read with Sec.2(c)(iii) of Contempt Act for the following alleged excesses viz., (i) for deployment of additional armed force inside the High Court campus on 19.02.2009, after 11.30 am i.e. after Dr.Subramaniam Swamy left the High Court premises and that too without intimation/permission of the Registry; (ii) for the act of creating commotion inside the High Court premises under the guise of attempt to arrest the accused advocates and other advocates in between 12.00 noon and 3.45 p.m.; (iii) for the act of entering the High Court, City Civil Court, Court of Small Causes, Family Court, Law Association premises, Madras High Court Advocates Association premises under the guise of chasing the lawyers; (iv) for the alleged act of causing extensive damages to the properties inside the campus such as vehicles, buildings and association libraries and furniture; (v) for the alleged act of causing injuries on the personnel namely the sitting Judge of this Court, the lawyers, court staff and litigant public who assembled in the High Court campus for carrying on their lawful activities; (vi) for the alleged acts of interference in the course of justice by paralysing the functioning of the High Court on 20th, 23rd and 24th of February, 2009, the functioning of City Civil Court, Court of Small Causes and other Judicial Forums located inside the High Court campus on 20th and 23rd to 27th February, 2009 and paralysing the functioning of subordinate Courts throughout the State on 20th, 23rd and 24th February, 2009; (vii) for the alleged act of failure to withdraw the additional armed forces drawn into High Court premises inspite of specific and repeated directions of the Hon'ble Acting Chief Justice; (viii) for having filed false affidavits in this proceedings; and (ix) for such other acts of the above contemnors which this Court comes across in the course of the hearing of the contempt petition.
543. Director General of Police-Mr.K.P.Jain:
As we pointed out earlier, administration of City Police is vested with CoP. Even though, administration of City Police is vested with the Commissioner, in the counter-affidavit, DGP has extensively referred to Police Standing Orders and has only averred that it was well within the jurisdiction of CoP to handle any law and order situation to the best of his ability. We are not happy with the way in which counter affidavit has been filed by the DGP. The entire averments in the counter-affidavit appears to be only blaming the lawyers. As the Head of Police department, it was expected of the DGP to file the counter affidavit with definite averments as to who were the Police officers and Police personnel deployed and what are the positive steps that DGP has taken in this regard. Though, we are not happy with the averments in the counter-affidavit filed by DGP, we do not think that there are enough materials to initiate contempt proceedings against DGP.
544. Other Officers and various Police personnel present in High Court Premises on 19.02.2009:
Mr.Anup Jaiswal-DGP (I&T), Mr.Sunil Kumar-Addl. CoP (Traffic), Mr. Sandeep Rai Rathore, JCP [Central], Mr.Gunaseelan-JC (South Zone), Mr.Sarangan-DCP, Kilpauk, S.Panneerselvam-DCP, Pulianthope, Mr.T.S.Anbu-DCP, Anna Nagar, Mr.C.Sridhar, DCP, Adyar, Mr. M.S.Muthusamy-DCP, T.Nagar, Mr.K.Joshi Nirmal Kumar-DCP (Traffic-South), Mr.Thirugnanam-DCP (Traffic-North) and Mr.C.Jayakodi-Inspector of Police were all present. That apart number of Inspectors and Police personnel were also deployed.
545. On behalf of Mr.Sandeep Rai Rathore-JCP (Central), Mr.Muthusamy-DCP (T.Nagar) and Mr.K.Joshi Nirmal Kumar-DCP (Traffic-South), it was stated that those officers have no role to play in the incident on 19.2.2009.
546. In his counter, Mr.Rajendran-Addl. DGP averred that the only role played by him was to attend the meeting held in the Chamber of ACJ on 18.2.2009 and he had no role to play in the incident on 19.2.2009. Mr.Rajendran-then Addl. DGP attended only the meeting on 18.2.2009 and no case is made out to initiate Contempt proceedings against Mr.Rajendran-then Addl. DGP.
547. In the counter-affidavit filed by Mr.Anup Jaiswal-DGP (I&T), it is averred that he had nothing to do with the occurrence which took place on 19.2.2009 and never took park in any of the events happened there. In his counter, Mr.Sunil Kumar-Addl. ACP (Traffic) averred that his role was confined to see the free flow of traffic on 19.2.2009 around the High Court. In his counter, Mr.Gunaseelan-JCP has stated that he reached the High Court at 5.00 P.M. and he had nothing to do with the incident on 19.2.2009. Mr.Sarangan-DCP has stated that he was present in the High Court as per direction. Like wise, in their counter-affidavits Mr.S.Panneerselvam-DCP, Mr.T.S.Anbu-DCP and Mr.C.Sridhar-DCP averred that they had no role to play and they reached the High Court only at 5.00 P.M. In his counter, Mr.N.K.Joshi-DCP averred that he had to role to play and he was not even present in the campus on 19.2.2009. Mr.Thirugnanam-DCP has stated in his counter that he had no role to play and from 4.00 P.M. he was directed to control traffic work. It his counter, Mr.C.Jayakodi-Inspector of Police averred that he simply assisted in the operations and no role was assigned to him other than being present.
548. As per the direction of CoP/JCP (North), the above Officers were deployed in the High Court premises and outside. Mr.Anup Jaiswal-DGP (I&T); Mr.Sunil Kumar-Addl. CoP (Traffic); Mr. Sandeep Rai Rathore-JCP [Central]; Mr.Gunaseelan-JCP (South Zone); Mr.Sarangan-DCP, Kilpauk; Mr.S.Panneerselvam-DCP, Pulianthope; Mr.T.S.Anbu-DCP, Anna Nagar; Mr.C.Sridhar, DCP, Adyar; Mr. M.S.Muthusamy-DCP, T.Nagar; Mr.K.Joshi Nirmal Kumar-DCP (Traffic-South) and Mr.Thirugnanam-DCP (Traffic-North) had no role in the decision making process either in deploying the police personnel or ordering lathicharge. There are no materials warranting initiation of contempt proceedings against the above officers. But it would not absolve them of their misconduct, if any, for the respective offences in R.C.No.2(S)/2009/CBI/SCB/Chennai under Sec.144, 147, 148, 323, 325, 326, 427, 436 and 450 IPC and under Sec.3 (1) and 4of TNP (PDL) Act, the FIR registered by the CBI. If any of the above Officers are identified as having committed excess, those of the Officers are to be proceeded with in accordance with law both in R.C.No.2 (S)/2009/CBI/SCB/Chennai and also disciplinary proceedings.
549. So far as, Mr.Jeyakodi, Inspector of Police and other Inspectors and Police constables including the riot police, are not proceeded for contempt Cout . But it would not absolve them of their misconduct, if any, for the respective offences in R.C.No.2(S)/2009/CBI/SCB/Chennai under Sec.144, 147, 148, 323, 325, 326, 427, 436 and 450 IPC and under Sec.3 (1) and 4 of TNP (PDL) Act in accordance with law.
550. DISCIPLINARY PROCEEDINGS:-
Upon analysis of materials, we have arrived at the conclusion that CoP- Mr.Radhakrishnan, Addl.CoP * Mr.Viswanathan, JCP (North) * Mr.Ramasubramani and DCP (Flower Bazaar) * Mr.Prem Anand Sinha were responsible for deploying the police force and for interference with the administration of justice. Having regard to our order directing initiation of the contempt proceedings on the above Officers, the next aspect to be considered is initiation of appropriate disciplinary proceedings against the said four officers.
551. By order dated 18.3.2009, the Full Bench has directed initiation of disciplinary proceedings against JCP (North) * Mr.Ramasubramani and Addl. CoP (L&O) Mr.Viswanathan and directed them to be placed under suspension. In SLP (Civil) No. 7540 of 2009, the Supreme Court has set aside the order and remitted the matter back to the High Court to afford an opportunity to the above two officers.
552. We have heard the arguments at length on behalf of JCP (North) * Mr.Ramasubramani and Addl. CoP (L&O) Mr.Viswanathan.
553. On behalf of the State, it was submitted that Sundaradevan - One Man Committee headed by Mr.Sundaradevan, IAS was appointed to inquire into the police action and to fix the responsibility for the alleged excess committed during the law and order incident which happened in the High Court campus on 19.2.2009 and the lawyers did not co-operate with the Sundaradevan Committee.
554. The learned Advocate General submitted that since the lawyers did not co-operate in the inquiry by the One Man Committee, the Committee is yet to arrive at the conclusion as to who were responsible for committing excess and in such circumstances, writ of mandamus to initiate disciplinary proceedings may not be appropriate.
555. Dr. Rajeev Dhavan, learned Senior Counsel submitted that a positive mandamus will lie when the exercise of power contains objective criteria and where there is a power coupled with a duty. It was further submitted that while dealing with the law and order situation in the High Court campus on 19.2.2009 for committing the alleged excess, no mandamus could lie to the Government to initiate disciplinary proceedings.
556. Elaborating upon the circumstances under which the writ of mandamus will lie, the learned senior counsel Dr.Rajeev Dhavan placed reliance upon judgment of the Supreme Court rendered in Comptroller and Auditor-General of India v. K.S.Jagannathan - (1986) 2 SCC 679, wherein it was held as follows:-
"There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order to give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion." [Emphasis added].
557. It was submitted that since the police officers have acted in good faith to maintain law and order situation in the premises, no case is made out for issuing direction to the State Government to exercise its discretion to initiate disciplinary proceedings against the officers.
558. Article 311 of the Constitution of India gives a two-fold protection (i) against dismissal or removal by authority subordinate to that by which appointed and (ii) against dismissal, removal or reduction in rank without giving a reasonable opportunity of showing cause against the proposed action. Protection under Article 311 is available to permanent as well as temporary employees. To invoke Article 311, the Court has to apply two tests viz., (i) whether the government servant has right to the post or the rank or (ii) whether he has been visited with civil consequences. The protection under Article 311 of the Constitution of India applies to the persons who are members of civil servant of the State or All India service or holding Civil post under Union or State.
559. We have already arrived at the conclusion that the Officers viz., CoP- Mr.Radhakrishnan, Addl.CoP * Mr.Viswanathan, JCP (North) * Mr.Ramasubramani and DCP (Flower Bazaar) * Mr.Prem Anand Sinha were responsible for causing obstruction to the functioning of the Courts on 19.2.2009 and also caused interference with the course of administration of justice which led to closure of the High Court on 20.2.2009, 23.2.2009 and 24.2.2009 and for one week in the City Civil Court and Small Causes Court situated in the High Court premises. Hence, we are of the considered view that disciplinary proceedings are to be initiated against CoP-Mr.Radhakrishnan, Addl.CoP* Mr.Viswanathan, JCP (North)*Mr.Ramasubramani and DCP (Flower Bazaar)*Mr.Prem Anand Sinha.
560. For any action taken under Sections 129 and 130 of Crl.P.C., in dispersal of assembly by use of civil force and for use of armed forces to disperse assembly, the Officers/ Police personnel are entitled to protection against the prosecution for acts done under Sections 129 and Section 130 Cr.P.C., only if they have acted in good faith. We have already held that prima facie that there are over whelming materials to show that the above officers have not acted in good faith and they have not exercised due care and caution; nor did they have foreseen the consequences of their action upon the administration of justice. In such view of the matter, there could be no impediment in initiating disciplinary proceedings.
561. In the counter affidavit filed by the Home Secretary, in para 22, the State Government placed on record its statement that any Police Personnel if found to be the cause for the excess committed they will be suitably punished by initiating appropriate departmental action. During his submission, the learned Advocate General also reiterated the stand of the Government.
562. On behalf of the lawyers, it was submitted that the Officers, who were at the helm of affairs should be (a) transferred, (b) suspended, (c) to file criminal complaints against them and (d) to initiate disciplinary proceedings. It was mainly argued that suitable directions are to be issued to the State Government for initiating disciplinary proceedings and during pendency of the disciplinary proceedings to suspend the officers responsible for the incident on 19.2.20009.
563. Submitting that suspension is a major punishment, the learned senior counsel Dr. Rajeev Dhavan contended that order of suspension cannot lightly be passed against a civil servant who is entitled to protection under Article 311 of the Constitution of India. It was further argued that only when the Officer was proceeded under the following charges, any suspension can be ordered viz., (i) Rule 17(e) of the TNCS (D & A) Rules (or) (ii) Rule 3(e) of TNPSS (D & A) Rules (or) (iii) Rule 3 of the AIS (D & A) Rules and no suspension can be made apart from the above circumstances.
564. The learned senior counsel would further submit that responsibility for ordering suspension is wholly with the constitutional and statutory authorities and it is not for the Court to see whether to keep an employee under suspension pending any action. In support of his contention, the learned senior counsel placed reliance upon the judgment of the Supreme Court rendered in State of Orissa v. BimalKumar Mohanty - (1994) 4 SCC 126, wherein the Supreme Court has held that after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of mind by disciplinary authority, should consider the above aspects, decide whether it is expedient to keep an employee under suspension pending disciplinary proceedings. It is fairly settled that it is the prerogative of the appointing authority or disciplinary authority whether to place the officer on suspension or not on consideration of gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The learned senior counsel Dr.Rajeev Dhavan submitted that when it is purely the discretion of the Government to keep an employee under suspension pending disciplinary proceedings, no mandamus will lie to usurp statutorily assigned role or dictate how it is to be done.
565. Learned Senior Counsel mainly urged that the Court cannot dictate the decision of the statutory authority that ought to be made in the exercise of discretion in given case and the Court cannot direct the statutory authority to exercise the discretion in a particular manner. Reliance was placed in the Supreme Court judgment rendered in U.P. State Road Transport Corpn. v. Mohd. Ismail (1991) 3 SCC 239 and Aeltemesh Rein v. Union of India (1988) 4 SCC 54.
566. Reliance was also placed on the judgments of the Supreme Court reported in State of W.B. v. Nuruddin Mallick (1998) 8 SCC 143 and A.P. SRTC v G. Srinivas Reddy (2006) 3 SCC 674. In one of the decision viz., in (1998) 8 SCC 143, it was held that,
"................... It would not be appropriate for the Court to substitute itself for the statutory authorities to decide the matter".
567. Observing that the Court cannot direct the statutory authority to exercise the discretion in a particular manner, reliance was placed on the judgment of the Supreme Court reported in Chingleput Bottlers v. Majestic Bottling Co., (1984) 3 SCC 258, wherein it is held as follows:-
"....... Normally, where the statute vests a discretionary power upon an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique motives or extraneous purposes or upon extraneous considerations." (Emphasis added)
568. We are conscious that it would not be appropriate for the Court to substitute itself for the statutory authorities and usurp the discretion of the Government in dealing with its Officers. We are also conscious that normally writ of mandamus may not be issued directing the State Government to exercise its discretion in a particular manner. The extra ordinary jurisdiction under Article 226 of the Constitution of India is not daunted where there is glaring violation of fundamental rights and situation warrants an affirmative action.
569. In the judgment of the Supreme Court rendered in GUJARAT STEEL TUBES LTD. v. G.S.T. MAZDOOR SABHA 1980 (1) LLJ 137, it was observed that the power under Article 226 of the Constitution of India is larger. In para 80 of the said judgment, it was held as follows:-
* ....... So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power.*
570. We are mainly concerned with fair and unbiased inquiry. Continuance in office by the Officers who were responsible for the police excess might prejudice the inquiry. Having regard to our conclusion that the Officers viz., CoP- Mr.Radhakrishnan, Addl.CoP * Mr.Viswanathan, JCP (North) * Mr.Ramasubramani and DCP (Flower Bazaar) * Mr.Prem Anand Sinha are responsible for the excess committed and causing obstruction to administration of justice, to enable fair and unbiased inquiry, in our considered view that it will be in order for the State Government to exercise its discretion by placing the above Officers under suspension pending the disciplinary proceedings.
571. Directions to CBI case:
R.C.No.1(S)/2009/CBI/SCB/Chennai:- Based on the complaint lodged by Mr.Jayakodi-Inspector of Police on 19.2.2009, case was registered in Crime No.15/2009 under Sec.147, 353, 332, 450, 436, 307 IPC r/w. 3(1) TNPPDL Act against named five lawyers and 150 lawyers. Crime No.15/2009 was transferred to CBI and re-registered in R.C.No.1(S) CBI/SCB/Chennai under Sec.147, 353, 332, 450, 436, 307 IPC and under Sec.3 (1) TNPPDL Act.
572. Mr.Prabakaran, President TNAA and Mr.Paul Kanagaraj, President MHAA contended that as per the order dated 2.3.2009 any information given subsequently after 6.40 P.M. on 19.2.2009 cannot be treated to be a case and urged us to pass appropriate directions that R.C.No.1(S)/2009/CBI/SCB/Chennai registered against lawyers cannot be proceeded with.
573. We are unable to accept the contention that R.C.No.1(S)/2009/CBI/SCB Chennai cannot be proceeded with. The relevant portion of the order dated 2.3.2009 reads as under:-
"4. ...... It will also be open to the respondents/State authorities and Union of India to pass appropriate orders on the basis of the first information received by them at 6.40 P.M. pursuant to the Court's order dated 19th February 2009. Any other information given subsequently at or about 19.20 hours (7.20 P.M.) cannot be treated to be a case registered pursuant to the Court's order. It will also be open to the CBI to register a case on the basis of the Court's order dated 19th February 2009.
Court has only expressed its concern for non-registration of the case based upon the order passed by the Bench at 6.40 P.M. on 19.2.2009. Absolutely, there is nothing to indicate that Court has interdicted continuance of investigation in R.C.No.1(S)/2009/CBI/SCB/Chennai [Crime No.15/2009]. This is made very clear from the earlier order of the Court dated 19.2.2009. In the said order dated 19.2.2009, Court has recorded statement of Home Secretary that regarding the incident on 19.2.2009, no lawyer would be taken to custody. However, Court has categorically said after investigation, if necessary, they may proceed in accordance with law. The relevant portion of the order reads as follows:-
" 2 (ii) The Home Secretary states that no lawyer will be taken in custody in connection with today's incidence. After proper police investigation and after informing the matter to the Hon'ble the Chief Justice (Acting Chief Justice for the present), if necessary, in future, they may proceed in accordance with law."
574. As we elaborated earlier, group of lawyers pelted stones and acted in a most unacceptable manner. There are also prima facie evidence to indicate that miscreants appearing to be lawyers setting fire to the B4-High Court Police Station. If really the lawyers have caused damage to the public properties and set fire to the B4-High Court Police Station, they are necessarily to be proceeded with in accordance with law.
575. On 18.9.2009, CoP has filed list of names of Advocates who are said to have formed an unlawful assembly in front of B4-High Court Police Station at 2.00 P.M. and also names of advocates who are said to have set fire to B4-High Court Police Station. On the side of Advocates, strong objections were raised contending that the list is camouflaged by including the names of lawyers whom the Police seek to victimise. As such we are not inclined to accept the list of names furnished either by lawyers or by police involved. Therefore, we direct the investigation in Crime No.15/2009 now CBI R.C.No.1 (S)/2009/CBI/Chennai be proceed in accordance with law.
576. R.C.No.2(S)/2009/CBI:- After the orders of the Court dated 02.3.2009 and based upon the order dated 19.2.2009, CBI has registered the case in R.C.No.2(S)/2009/CBI/SCB/Chennai against the unnamed Police officials and other Police personnel. In its report, CBI has stated that it has examined number of witnesses, Police officers, Advocates, Judicial Officers, Court staff, litigant public and others.
577. In Para (16) of its report, CBI averred that "particulars relating to identity of the Advocates have been collected from Madras High Court Advocates Association and Madras Bar Association. But the report does not indicate anything about the identification of the Police personnel who indulged in deliberate destruction of vehicles and court properties and beating of lawyers. After the incident, eight months had gone; but still the identity of the Police personnel who indulged in deliberate destruction of vehicles and properties are yet to be known.
578. In the rejoinder, lawyers have given annexure containing names of Police officers and Police constables allegedly involved in damaging the vehicles. In the list, they have also alleged that only Police officers set fire to Police Station. The learned Government Pleader raised serious objections contending that such allegations are baseless and reckless allegations are levelled against the Police Officers. We are not inclined to place any reliance upon the annexure filed by the lawyers and we eschew it from our consideration. CBI is directed to proceed with the investigation in R.C.No.2(S)/2009/CBI/SCB/Chennai independently.
579. In so far as, R.C.No.2(S)/2009/CBI/SCB/Chennai, CBI is directed to identify the Police officers and Police personnel who indulged in excesses lashing out lathi blows on the lawyers, litigant public, Court staff and who indulged in causing damage to the vehicles and also to the Court properties. The State Government and Director General of Police are directed to immediately furnish the list of entire Police officers and Police personnel and their present designation who were in the High Court on 19.2.2009 to the CBI to enable it to identify the Police officers and Police personnel. CBI is also permitted to have copy of Video and Photos taken by the Committee constituted by the High Court to assess the damages. On identification of the Police Officers and police Personnel CBI is directed to proceed with the investigation in R.C.No.2(S)/2009/CBI/SCB/Chennai in accordance with law.
580. CBI shall proceed with the investigation in both the cases expeditiously and CBI is directed to file final Report in both cases within a period of three months from the date of this order.
581. Incident on 17.2.2009/Crime No.13 of 2009:
In so far as the incident on 17.2.2009, already larger Bench has seized up the matter and therefore, it is not necessary for us to issue any direction in respect of Crime No.13/2009.
582. Compensation:-
To reimburse the medical expenses and for payment of compensation to the damages caused to the vehicles, State Government has placed [G.O.Ms.No.668 dated 20.07.2009] at the disposal of Registrar-General a total sum of Rs.61,00,000/-. Out of the said amount of Rs.61,00,000/-, medical expenses and compensation to the injured and to the damaged vehicles were paid as under:-
1.Payment to Hospitals (Apollo Hospital ... Rs. 11,97,827.00
and Lifeline Multi Speciality Hospital)
2.Compensation for injuries to persons ... Rs. 20,99,768.00
3.Damages to Vehicles
i) Four Wheelers to 56 persons ... Rs. 10,63,953.00
ii) Two Wheelers to 59 persons
iii) For Cycles to 3 persons
4.Expenditure incurred for Repairing
The Damages caused to High Court, ... Rs. 6,39,460.00
City Civil Court, Small Causes Court
5.Law Association (TV) ... Rs. 40,000.00
--------------------
TOTAL Rs. 50,41,008.00
--------------------
Compensation for injuries to some more claimants is said to be under processing.
583. Apart from medical expenses, the lawyers who sustained grievous and simple injuries were also paid compensation as indicated in the report filed by the Registrar-General. The question falling for consideration is whether any further amount is to be paid to the lawyers for infringement of their fundamental rights and for the ignominy and humiliation suffered by them .
584. Award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21 by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation by way of public law remedy will not come in the way of the aggrieved person claiming additional compensation in a civil Court, in enforcement of the private law remedy in tort, nor come in the way of the criminal Court ordering compensation under Section 357 of Code of Civil Procedure.
585. Award of compensation as a Public law remedy for violation of fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the Law of Torts was evolved in the last two and half decades. The Supreme Court considered the question of awarding compensation as Public Law remedy in AIR 1981 SC 928 [Bhagalpur Blinding case, (Khatri (ii) v. State of Bihar].
586. In [Rudul Sah case Vs. State of Bihar [1983(4) SCC 141], the petitioner therein approached the Supreme Court under Article 32 of the Constitution alleging that though he was acquitted by the Sessions Court on 3-6-1968, he was released from jail only on 06-10-1982, after 14 years, and sought compensation for his illegal detention. The Hon'ble Supreme Court while recongnizing that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal, raised for consideration the important question as to whether in the exercise of its jurisdiction under Article 32, the Supreme Court can pass an order for payment of money, as compensation for the deprivation of a fundamental right. Awarding compensation the Supreme Court held as follows:-
6. "Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention. It is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers".
587. Rudul Sah case was followed in Bhim Singh V. State of J&K [1985(4) SCC 677] and People's Union for Democratic Rights V. Police Commissioner, Delhi Police Headquarters [1989 (4) SCC 730].
588. The law was crystallised in Nilabati Behera V. State of Orissa [1993 (2) SCC 746]. In that case, the deceased was arrested by the police, handcuffed and kept in a police custody. The next day, his dead-body was found on a railway track. The Supreme Court awarded compensation to the mother of the deceased. Hon'ble Supreme Court spelt out the following principles:-
"Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort.
Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.
9. A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.
589. The distinction between tort by the officers for which the State may be vicariously liable and the primary and strict liability of the State for the public law wrong of violation of a fundamental right has sometimes not been maintained and cases of public law wrongs redressed under the public law remedies by applications under Article 226 have at times been, referred to as cases of tort. In Chairman Railway Board V. Mrs. Chandrima Das (AIR 2000 SC 988) where a Bangladeshi woman was gang raped by employees of the Indian Railway, the court rightly held that it was a case of violation of the fundamental right of the Bangladeshi woman under Article, 21 which applies also to non-citizens and the High Court was right in allowing compensation of Rs.10 lakhs against the Railway in a public interest petition under Article 226 as the "state was under a constitutional liability to pay compensation to here. But in the course of discussion some earlier cases relating to violation of fundamental right awarding compensation under Article 32 or 226 have been described as cases "in the the realm of tort" and there is also some reference to vicarious liability of the State. As submitted earlier, the liability enforced under Article 32 or 226 for violation of a fundamental right is the primary and strict liability of the State and not its vicarious liability for the tort committed by its officers.
590. We are conscious that extension of fundamental rights under Articles 21 and 32 against private persons, apart from being of doubtful validity, may open a Pandora's box and flood the Supreme Court and High Courts with petitions seeking damages. Rights to life and personal liberty against private persons are already covered by common law and statute law and private law remedies are available for violations of these rights. The courts must also be astute to guard against the trend that the blame for every misfortune must be laid at the doorstep of the State under Article 21, lest every wrong or offence against the person or property becomes redressable as a public law wrong against the State on the ground that it was not sufficiently vigilant in protecting the person or property of the victim. Time and again the Supreme Court deprecated the tendency to grant huge sums as damages under Article 226 in cases where the facts are disputed and there has been no trial of issues involved.
591. In Nilabati Behera's case [1993 AIR SCW 2366], the Supreme Court put in a word of caution as follows:-
"Of course, relief in exercise of the power under Article 32 or 226 would be granted only (when) it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible, ...Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and self-restraint lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law".
592. We are conscious that it is not in every case where there is breach of fundamental right committed by the violator/Police that compensation would be awarded under Article 226 of Constitution. The infringement of the fundamental right must be gross and patent and in controvertible and ex-facie glaring. But the case before us is of exceptional nature where number of lawyers sustained grievous and simple injuries. It is a clear case of breach of fundamental rights and the infringement of fundamental rights is gross and patent and ex-facie glaring. Having regard to the large scale infringement of fundamental rights of large number of persons, in our considered view that this is an appropriate case to award further damages towards the injured persons.
593. Committee of Hon'ble Judges was constituted and the committee had gone into the nature of injuries and fixed the compensation payable. Depending upon the nature of injuries and pain and suffering the injured lawyers, Courts staff and others were paid some amount as compensation. We are informed that most of the lawyers have received the compensation amount without prejudice to their right of claiming further compensation.
594. Having regard to the breach of fundamental rights of large number of persons and with a view to give quietus to the matter, we deem it appropriate to award further compensation to the injured persons. We have carefully examined the list furnished by the Registrar-General and the nature of injuries sustained by each of the injured persons. As per the report of the Registrar General, totally 175 were injured, out of which only 139 appeared before the Medical Board/Committee. Those of them who sustained grievous injuries resulting in impairments shall be entitled to Rs.1,00,000/- each as ex-gratia amount. Those of them sustained simple injuries shall be paid a sum of Rs.25,000/- each as ex-gratia amount. The above ex-gratia amount shall be in addition to the compensation already paid to them.
595. The following lawyers/ Court staff who sustained grievous injuries shall be paid further ex-gratia amount of Rs.1,00,000/-each.
1) K.Sudhan
7) S.Raghu
13) A.Zakir Hussain
2) V.Ramalingam
8) S.Alagarraj
14) B.Dakshinamurthy
(Court Staff)
3) S.V.Karthikeyan,
9) P.Gnana Sekaran
15)P.Balasubramanian (Court Staff)
4) D.Sivakumar,
10)M.Muneeswaran
16)K.Prabhu
5) S.Anandan
11) D.Anandan
17) R.J.Arjuna
6) R.Bhagawat Krishna
12) N.Gowthaman
18) P.Subramanian
[Totalling Rs.18,00,000/-]
Sl.Nos.1 to 12 .... Advocates; Sl.Nos.14 to 18 * Court Staff.
The following lawyers/court staff/law college students and others who sustained injuries/simple injuries shall be paid further ex-gratia amount of Rs.25,000/- each.
1)T.Karthikeyan
42)R.Raja
83)G.Sathyaraj
2)K.Jayakannan
43)P.Rajendran
84)P.Chinnadurai
3)J.Kingsly Solomon
44)S.Sankar
85)G.Senthil Kumar
4)N.A.Saidque
45)M.Thomas Acquinas
86)V.Karthikeyan
5)Dr.R.Sampath Kumar
46)A.Mohandoss
87)P.Vijayakanth
6)V.Thirunavukkarasu
47)M.Rajendran
88)R.Kamalakkannan
7)Dr.G.Krishnamurthy
48)S.Sankaranarayana
89)Vellidoss
8)U.Prabhu
49)T.M.Ajin
90)S.Jeevarathina
9)I.Arockia Selvaraj
50)R.Velu
91)Thangapandian
10)A.Singaravelu
51)P.Arivumani
92)M.Mahalingam
11)D.Thirumurthy
52)J.John
93)N.Chandrababu
12)K.Gokulram
53)S.Ananda Kumar
94)V.Srinivasan
13)S.V.Singaravelan
54)R.Vijayakumar
95)R.Sathyamoorthy
14)K.Jayaraman
55)R.Kubendiran
96)T.E.Sampath Kumar
15)J.Karthick
56)V.Selvaperumal
97)T.Baskaran
16)R.Sudhakar
57)S.Immanuvel Thamilselvan
98)M.Rajendran
17)R.L.Saravanan
58)K.Jagannadha Rao
99)R.Sekar
18)R.Sudha
59)S.Arul
100)P.Pooliahpandian
19)L.Sasidharan
60)M.Anbuselvan
101)J.Abdul Malick
20)K.S.Purushothaman
61)S.Nagarajan
102)M.Chennakesavalu
21)T.S.Kanmani
62)M.Mohamed Rafi
103)R.Manickam
22)C.Narayana Ram
63)G.Mohanakrishnan
104)G.Vijayakumar
23)S.Meenakshi Sundaram
64)G.Balakrishnan
105)S.Chandrasekaran
24)R.Suresh Kumar
65)G.Vijaya Balan
106)M.Jahir Hussain
25)S.Siva Sankar
66)J.Pooma Chandran
107)Mrs.Bhuvaneswari
26)C.S.V.Loganathan
67)B.Mohan Raj
108)E.Sivaraj
27)G.Srinivasan
68)T.Senthil Rajan
109)S.Gopi
28)R.Sreerangan
69)P.Madasamy
110)Rajaguru
29)A.K.Kaleel Ahamed
70)R.Murali
111)K.Hemalatha
30)Kayal @ Angayarkanni
71)K.Ramasundaram
112)M.Sekar
31)M.Zainul Abideen
72)S.Kamaraj
113)K.Shanmugam
32)C.Panneer Selvam
73)N.Vijayaraj
114)D.Williams
33)V.Alamelu
74)S.Vijayalakshmi
115)P.Akila
34)S.Ramajayam
75)R.Janagi
116)M.Bharathi
35)M.Karthikeyan
76)V.Amudha
117)Vishwanth Swami
36)A.Anandan
77)R.Arun
118)S.Usha Koshi
37)A.Juhilin Jinu Hebarson
78)N.Velayudam
119)N.Selvam
38)M.K.Thiruvengadam
79)M.Jaikumar
120)B.Ellappan
39)C.Ramesh
80)J.N.Nareshkumar
121)M.S.Sivakumar
40)A.Arokiadoss
81)S.Arumugam
41)C.Chandrasekar
82)K.Nagarajan
[Totalling Rs.30,25,000/-]
Sl.Nos. 1 to 84 ... Advocates; Sl.No.85 to 89 ... Law College Students; Sl.Nos. 90 to 105 ... Court Staff and Sl.Nos. 106 to 121 ... Others.
596. We direct that the payment of ex-gratia amount shall be in 'full and final settlement' of all the claims of injured persons. On payment of the said amount no further claim shall lie in this regard. We direct the State Government to place further a sum of Rs.48,25,000/- at the disposal of Registrar General for disbursement of the ex-gratia amount to the injured persons as indicated above.
597. On 19.02.2009 the Police have also entered into the Law Association, Small Causes Court, and Madras High Court Advocate Association [MHAA] and caused extensive damages to the library and other furnitures. Already an amount of Rs.40,000/- was paid to Small Causes Court for replacement of damages for Sony LCD TV. We have also seen the photographs and the damages caused. Having regard to the damages caused to the above two Associations, an amount of Rs.5,00,000/- each shall be paid to the Law Association and MHAA respectively. [Total Rs.10,00,000/-].
598. The State Government is directed to place at the disposal of Registrar-General a total sum of Rs.58,25,000/- for being paid to the injured persons and to the Law Association and MHAA. After paying the amount, the Registrar General is directed to send report to the State Government as to amount disbursed.
599. We make it clear, apart from the claims so far already made and the 36 injured persons who have not appeared before the Hon'ble Committee/Registrar-General (as per the list filed by the Registry), no fresh claim shall be entertained.
600. SECURITY IN PRINCIPAL SEAT AND MADURAI BENCH:
The revised security Scheme/Plan for Principal Seat with the strength of 252 Police personnel was inaugurated on 21.1.2009. With 252 Police personnel, the scheme was implemented from 28.1.2009 and 252 Police personnel [in shift] continued in the premises and discharging their security duty in the respective assigned area. On 17.2.2009, Dr. Subramaniam Swamy appeared in Court Hall No.III and was attacked. After the incident on 19.2.2009, Police Force inside the High Court premises was withdrawn. On 23.4.2009, the Hon'ble Security Committee directed the Registry to address the State Government to restore the complement of Police force as it existed prior to 17.2.2009 with effect from 01.5.2009. But from 01.5.2009, only a skeletal complement of Police personnel is being posted inside the High Court premises at important places.
601. High Court being high Security Zone, as resolved by the Hon'ble Security Committee, State Government is directed to restore complement of Police force as it existed prior to 17.2.2009. Lawyers are directed to render all co-operation for implementation of Security plan as it existed prior to 17.2.2009.
* * * * *
F.M.IBRAHIM KALIFULLA, J.
&
R.BANUMATHI, J.
602. COMMON CONCLUSIONS AND DIRECTIONS:
I. Compensation:-
(a) It is held that the injured lawyers/court staff/others who sustained grievous injuries shall be paid an ex-gratia amount of Rs.1,00,000/- each (Rupees One lakh only). The injured lawyers/court staff/others who sustained simple injuries shall be paid an ex-gratia amount of Rs.25,000/- each (Rupees Twenty five thousand only). [Vide List in Para (595)]. Payment of ex-gratia amount to the injured lawyers/court staff/others shall be in addition to the compensation amount already paid to them from and out of the amount already sanctioned by the State Government. Payment of ex-gratia shall be in full and final settlement of all the claims of the injured lawyers/court staff/others and there shall be no further claim in this regard.
(b) Law Association and Madras High Court Advocates Association (MHAA) shall be paid Rs.5,00,000/- each (Rupees Five lakhs) towards the damages caused to the Library and other infrastructures of their Associations.
(c) State Government is directed to place further amount of Rs.58,25,000/- (Rupees Fifty eight lakhs twenty five thousand) at the disposal of the Registrar-General, High Court, Madras for disbursement of ex-gratia amount as directed by us in Para (598) to the injured lawyers/court staff/others and for payment of damages to the Law Association and MHAA within six weeks from the date of this order.
(d) The Registrar-General and Registrar-Management shall ensure disbursement of the amount to the injured persons as per the list in Para (595) and to the Law Association and Madras High Court Advocates Association (MHAA).
(e) No fresh claims shall be entertained apart from the claims already made before the Registrar-General.
II. Contempt Proceedings:
(a) Primafacie case is made out against Mr.Radhakrishnan,then CoP, Chennai; Mr.A.K.Viswanathan then Addl. CoP (L&O), Chennai; Mr.Ramasubramani-then JCP(North) and Mr.Prem Anand Sinha-then DCP, Flower Bazaar that they have caused obstruction in the course of administration of justice and contempt proceedings have to be necessarily initiated against them.
(b) Contempt notice under Section 15(1) read with Section 2 (c) (iii) of Contempt of Courts Act is ordered to be issued to Mr.K.Radhakrishnan-then CoP, Chennai; Mr.A.K.Viswanathan-then Addl. CoP, Chennai; Mr.M.Ramasubramani-then JCP(North) and Mr.Prem Anand Sinha-then DCP, Flower Bazaar for the following alleged excesses:
(i) for deployment of additional armed force inside the High Court campus on 19.02.2009, after 11.30 am i.e. after Dr.Subramaniam Swamy left the High Court premises and that too without intimation /permission of the Registry;
(ii) for the act of creating commotion inside the High Court premises under the guise of attempt to arrest the accused advocates and other advocates in between 12.00 noon and 3.45 p.m.;
(iii) for the act of entering the High Court, City Civil Court, Court of Small Causes, Family Court, Law Association premises, Madras High Court Advocates Association premises under the guise of chasing the lawyers;
(iv) for the alleged act of causing extensive damages to the properties inside the campus such as vehicles, buildings and association libraries and furniture;
(v) for the alleged act of causing injuries on the personnel namely the then sitting Judge of this Court, lawyers, court staff and litigant public who assembled in the High Court campus for carrying on their lawful activities;
(vi) for the alleged acts of interference in the course of justice by paralysing the functioning of the High Court on 20th, 23rd and 24th of February, 2009, the functioning of City Civil Court, Court of Small Causes and other Judicial Forums located inside the High Court campus on 20th and 23rd to 27th February, 2009 and paralysing the functioning of subordinate Courts throughout the State on 20th, 23rd and 24th February, 2009;
(vii) for the alleged act of failure to withdraw the additional armed forces drawn into High Court premises inspite of specific and repeated directions of the Hon'ble Acting Chief Justice;
(viii) for having filed false affidavits in this proceedings; and
(ix) for such other acts of the above contemnors which this Court comes across in the course of the hearing of the contempt petition.
(c) No case is made out to initiate Contempt proceedings against the Chief Secretary, Home Secretary, Director General of Police and then Addl. Director General of Police (L&O) Mr.T.Rajendran.
(d) No case is made out to initiate Contempt proceedings against other officers viz., Mr.Anup Jaiswal-DGP (I&T); Mr.Sunil Kumar-Addl. CoP (Traffic); Mr. Sandeep Rai Rathore-JCP [Central]; Mr.Gunaseelan-JCP (South Zone); Mr.Sarangan-DCP, Kilpauk; Mr.S.Panneerselvam-DCP, Pulianthope; Mr.T.S.Anbu-DCP, Anna Nagar; Mr.C.Sridhar-DCP, Adyar; Mr. M.S.Muthusamy-DCP, T.Nagar; Mr.K.Joshi Nirmal Kumar-DCP (Traffic-South); Mr.Thirugnanam-DCP (Traffic-North) and Mr.C.Jayakodi-Inspector of Police B2-Esplanade Police Station. Even though, no prima facie case is made out to initiate Contempt Proceedings against these Officers, in the Criminal Case, if the above said Officers are charged as having committed excess in the incident on 19.2.2009, those Officers should be proceeded with in accordance with law both in R.C.No.2(S)/2009/CBI/SCB/Chennai and also by way of disciplinary proceedings.
III. Directions to the Government:
In as much as the learned Advocate General in the course of his submissions stated that the State Government will scrupulously comply with the directions that may be issued for taking any action against erring officers, we issue the following directions:
(a) In the light of various specific directions issued in this order, it is up to the State Government to consider whether continuance of One Man Committee (Dr.N.Sundaradevan Committee) appointed by the State Government should be pursued or not.
(b) Having regard to our conclusions holding that Mr.Radhakrishnan-then CoP, Chennai; Mr.A.K.Viswanathan-then Addl. CoP, Chennai; Mr.Ramasubramani-then JCP(North) and Mr.Prem Anand Sinha-then DCP, Flower Bazaar are responsible for the incident in the High Court campus on 19.2.2009 and Police excess in violation of statutory provisions including Police Standing Orders, we direct the State Government to initiate appropriate disciplinary proceedings against the above said officers and proceed with them in accordance with law.
(c) To enable fair and unbiased enquiry, it will be in order for the State Government to exercise its discretion to place the Officers viz., Mr.Radhakrishnan-then CoP, Chennai; Mr.Viswanathan-then Addl. CoP, Chennai; Mr.Ramasubramani-then JCP(North) and Mr.Prem Anand Sinha-then DCP, Flower Bazaar under suspension pending disciplinary action.
(d) In so far as, other Police officers and Police personnel deployed in the High Court on 19.2.2009, if in the final report in R.C.No.2/2009/CBI/SCB/ Chennai, are charged as having committed excess in the incident on 19.2.2009, we direct suitable disciplinary proceedings to be initiated against those Police officers and personnel also.
IV. Directions to CBI:
(a) We direct CBI to proceed with the investigation in R.C.No.1(S)/2009/CBI/SCB/ Chennai registered against the lawyers in accordance with law.
(b) In so far as, R.C.No.2(S)/2009/CBI/SCB /Chennai, registered against the Police, CBI is directed to proceed with the investigation in accordance with law.
(c) The CBI shall proceed with the investigation in both the cases expeditiously and file the final Report within three months from the date of this Order.
V. Directions to Registry:-
(a) Directions in W.P.No.7646/2006 dated 20.6.2006 shall be strictly implemented. We further direct that as per the directions of the Supreme Court in S.L.P. (Civil) No.7540/2009 dated 14.7.2009, there shall be no procession or Meetings in the Court verandah or in any part of the Court premises except within their Association Halls and that too in a peaceful manner in order to ensure that the proceedings of the Court is not in anyway disrupted.
(b) We reiterate the directions in W.P.No.24445/2006 dated 09.10.2006 which led to the constitution of State Level Co-ordination Committee in G.O.Ms.No.1249 Home (Police IX) Department dated 28.12.2006.
(c) We direct the Registrar-General to send a copy of the order in W.P.No.7646/2006 dated 20.6.2006 and our directions in these Writ Petitions to the Bar Council, all the Bar Associations in the Principal Seat and Madurai Bench and to the District Judges for being circulated to all the Bar Associations in the District Courts and in Moffusil Courts for strict implementation within six weeks from the date of this order.
VI. Security to High Court:-
(a) As far as the guidelines issued by the Government of India for preserving the Security of this Institution is concerned as per the direction contained in the letter No.IV.23014/79/2005/VS dated 31.5.2007 and the subsequent order dated 17.11.2008 and the steps taken by the Madras High Court Security Committee revising the Security arrangement system as was implemented from 28.1.2009, should be restored forthwith.
(b) State Government is directed to restore complement of Police force as it existed prior to 17.2.2009 as resolved by the Hon'ble Security Committee. Lawyers are directed to co-operate with the Registry for implementation of Security Plan as it existed prior to 17.2.2009.
VII. Security to District Courts and other Courts:-
State Government is directed to restore Security to District Courts and other Courts throughout the State as it existed prior to 19.02.2009.
603. We have dealt with the issues, keeping in view the public interest, interest of the Police, interest of the lawyers and above all, interest of the Institution. Though, we have found fault with some of the Officers, it should not be taken to mean that the whole Police Force is at fault. While we have found fault with certain Officers, in the same breath, we have also found fault with the lawyers for their continued boycotts and how it caused inconvenience to the public at large. We wish that Police and lawyers would bury their differences and rift in the interest of the public at large and in the interest of the Institution. Both the lawyers and Police, the two wings of the Institution should always work together for the administration of justice. Functioning of Courts and carrying on business of administration of justice depends upon the harmonious relation between the Police and lawyers. We wish that better counsel will prevail upon the Police and lawyers. We hope that Police and lawyers work hand in hand and promote better relationships. We also feel that it may be appropriate for the Police and lawyers to constitute their respective Committees both at State level/District level to resolve the differences in an amicable manner.
604. With the above directions and observations, all the Writ Petitions are disposed off except Suo Moto W.P.No.3335/2009 which shall be called along with the Contempt proceedings to be initiated as directed in this Order. Since CBI has registered the case in R.C. No.2 (S)/2009/CBI/SCB/Chennai, the Criminal O.Ps. are dismissed as infructuous. Consequently, all the connected M.Ps. and M.P.S.Rs. are closed. No costs.
605. The CDs filed and marked on either side [CD-P1 to P5 and CD-R1 & R2] and other CDs and documents shall form part of record and ordered to be kept along with the records in safe custody.
606. Likewise, the call log particulars filed by Mr.A.K.Viswanathan-Addl. CoP along with his counter shall form part of record and ordered to be kept along with the other records.
607. CBI is permitted to peruse the CDs and records and if need be, copy of records and CDs may also be furnished to CBI to facilitate the investigation.
608. We place on record the valuable assistance rendered by Mr.P.S.Raman, learned Advocate-General; learned Senior Counsel Dr.Rajeev Dhavan; and Mr.Raja Kalifullah, Government Pleader. We also place on record the co-operation extended by Mr.V.Selvaraj, Mr.P.N.Prakash and Mr.Swaminathan who argued onbehalf of some of the Police Officers.
609. We also place on record the co-operation of the lawyers in general and in particular Mr.S.Prabakaran, President TNAA, Mr.R.C.Paul Kanagaraj, President, MHAA, Ms.R.Vaigai, Senior Counsel Mr.R.Krishnamurthy, Senior Counsel Mr.T.V.Ramanujam, Mr.N.G.R.Prasad and Mr.V.Raghavachari.
kk/bbr
Thursday, October 29, 2009
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