THIS IS SECOND PART OF THE JUDGMENT.

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.13/2009B4-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 outfrom 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.CoPMr.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.

 

 

 

 

 

 

 

 

 

 

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