1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. PUBLIC INTEREST LITIGATION (LODG.) NO.56 OF 2008 1. Gajanan P. Lasure ) Adult, Indian Inhabitant, ) Occupation : Advocate, ) Residing at : Ganga Co-operative ) Housing Society Ltd., Building No.1, ) Room No.203, Lallubhai Compound, ) Mankhurd (W), Mumbai 400 043. ) 2. Aniket Bhagwanrao Deshkar ) Adult, Indian Inhabitant, ) Occupation : Advocate, ) Residing at : Ashish Co-operative ) Housing Society Ltd., Building ) No.E-70/1-2, Sector-6, Kalamboli, ) Taluka – Panvel, District – Raigad. ) ..Petitioners. Vs. 1. The Director General of Police ) Maharashtra State, ) Police Head Quarters, ) Mumbai – 400 001. ) 2. The Inspector General of Police ) State Reserve Police Fore (SRPF), ) Police Head Quarters, ) Mumbai – 400 001. ) 3. The Deputy Inspector General ) of Police, ) 2 Police Head Quarters, ) Mumbai – 400 001. ) 4. Manohar Yashwant Kadam, ) Police Sub-Inspector, ) State Reserve Police Force (SRPF), ) Presently posted at A-270, Nanavati ) Nagar, S.R.P., Group No.1, ) Ramtekadi, Pune. ) 5. The State of Maharashtra ) Through ) The Principal Secretary, ) Home Department, ) Mantralaya, Mumbai – 400 032. ) ..Respondents. ..... Mr. S.D. Rupawate with Mr. A.D. Nagarjun and Mr. M.A. Ingole for the Petitioners. Mr. Shekhar Ingavale, AGP for the State. Mr. Abhaykumar Apte for Respondent No.4. .... CORAM: SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J. 17th March, 2009. JUDGMENT : (PER DR. D.Y. CHANDRACHUD, J.) 1. Rule, by consent of the learned counsel made returnable forthwith. Counsel appearing for the Respondents waive service. With the consent of the learned counsel and at their request, the matter is taken up for hearing and final disposal. 3 2. Sometime before dawn on 11th July, 1997, a statue of Dr. Babasaheb Ambedkar, situated at Ramabai Ambedkar Nagar, Ghatkopar, Mumbai was desecrated. Residents of the locality came together to protest against the act of vandalization. Senior officials of the Pant Nagar Police Station and the Assistant Commissioner of Police reached the site. The Fourth Respondent was a PSI attached to the State Reserve Police Force and was stationed in the vicinity of Chembur. On receipt of a message he is alleged to have led his platoon to the scene of the protest at Ramabai Ambedkar Nagar. The allegation against the Fourth Respondent is that without the orders of his superiors he ordered the opening of fire : in the course of the shooting, ten persons were killed and twelve were alleged to have been seriously injured. 3. The Petitioners are advocates on the rolls of the Bar Council of Maharashtra and Goa. Their grievance is that an attempt was made all along by senior police officers to protect and shield the Fourth Respondent from the investigating arm and the process of law. A Commission of enquiry presided over by Mr. Justice S.D. 4 Gundewar, a former Judge of this Court was appointed by the State Government to enquire into the circumstances relating to the desecration of the statue, the police firing and other incidental issues. The Commission submitted its report to the State Government in August 1998. Initially, according to the Petitioners, the State Government delayed placing the report under the Commissions of Enquiry Act, 1952 before the state legislature and it was after a petition was filed before this Court by two activists that the State Government was constrained to table the report before the legislature. Two petitions under Article 226 were instituted before this Court in which the grievance was of the inaction of the State Government in launching prosecutions against those who were named in the report. On 8th August, 2001 a Division Bench of this Court directed the State Government to explain as to why no prosecution had been instituted. Thereafter an offence was registered (C. R. No.248 of 2001) at the Pant Nagar Police Station. The investigation was transferred to the C.I.D. The application for the grant of anticipatory bail was rejected by this Court. According to the Petitioners since the accused was not being arrested and 5 investigation was not being conducted along proper lines, another writ petition was instituted before this Court for transferring the investigation to the C.B.I. and for incidental reliefs. Thereupon some time in December 2002 the Fourth Respondent was arrested in Pune. The arrest, according to the Petitioners, was farcical and the Fourth Respondent was admitted to hospital. 4. The contention of the Petitioners is that the affidavit filed by the Investigating Officer, opposing the grant of anticipatory bail, shows that the Fourth Respondent was arrested on 20th December, 2002 and was detained in police custody and thereafter in judicial custody for more than 48 hours. On this basis, it is contended that the Fourth Respondent ought to have been regarded as under deemed suspension in terms of the governing service rules. According to the Petitioners the Fourth Respondent ought to have been treated as an officer under deemed suspension in view of his arrest and detention in custody for a period in excess of 48 hours. On 3rd January, 2003 the Fourth Respondent was enlarged on bail by the Court of Sessions for Greater Mumbai, subject to conditions. The 6 criminal trial is stated to have commenced on the date of the institution of the petition under Article 226. According to the Petitioners, the recording of evidence of the injured eye witness had commenced and the fact that the Fourth Respondent had not been suspended and was still being protected by the State had created a reign of terror in the minds of the witness. This, according to the Petitioners, would affect fairness of the trial and would in all probability hinder the course of justice. 5. At this stage, it would be material to advert to some of the salient features of the case which have emerged from the affidavit in reply filed in these proceedings by the State Government. The incident at Ramabai Ambedkar Nagar took place on 11th July, 1997. The Fourth Respondent, after a preliminary enquiry into the alleged incident of police firing, conducted by the Additional Commissioner of Police Mumbai, was suspended by the Commandant of SRPF Group – I on 8th August, 1997. A regular departmental enquiry was ordered against the Fourth Respondent by the Deputy General of Police, SRPF, Pune on 31st October, 2007. On 21st April, 1998 the order of 7 suspension was lifted by the Inspector General of Police, SRPF acting on a representation submitted by the Fourth Respondent. After the report of the Gundewar Commission, the Fourth Respondent was placed under suspension once again on 7th January, 1999. The order of suspension was lifted on 31st July, 2000. Both these periods of suspension were prior to the registration of an offence against the Fourth Respondent. On 30th August, 2001 an offence was registered against the Fourth Respondent under Sections 304 and 388 of the Penal Code at the Pant Nagar Police Station. A charge-sheet was filed on 20th December, 2002. On the same date, the Fourth Respondent was arrested at Pune. By an order dated 8th March, 2003 passed by the Deputy Inspector General of Police, SRPF the Fourth Respondent was placed under deemed suspension with effect from the date of his arrest. The order of suspension was, however, lifted on 24th April, 2003. The contention of the State is that the Fourth Respondent was placed under suspension for about one and a half years inclusive of the period after the date of his arrest. The Petition has been opposed by submitting before the Court that in a public interest litigation what is essentially a service matter should not 8 be entertained. 6. The Fourth Respondent has also filed an affidavit in these proceedings. The affidavit reiterates what has been stated in the affidavit filed by the State viz. he was placed under suspension during diverse periods until the orders of suspension were revoked by the competent authority. The Fourth Respondent has also adverted to the fact that upon the conclusion of the departmental enquiry that was held against him, he was placed on the minimum of the basic pay of a Police Sub-Inspector from 2nd August, 2000 for a period of two years. The Fourth Respondent has also furnished his explanation of the circumstances in which the firing took place. Insofar as his arrest is concerned, the Fourth Respondent contends that he was actually arrested and produced before the J.M.F.C. at Pune on 1st March, 2003 and thereupon was transferred to be produced before the Metropolitan Magistrate, Mumbai. On 3rd March, 2003, the Fourth Respondent was released on bail by the Sessions Court at 4.30 p.m. The Fourth Respondent contends that the period during which he was hospitalized at Pune and placed under police guard under Sections 9 53 and 57 of the Criminal Procedure Code does not qualify as an arrest and therefore the contention that the Fourth Respondent was in custody for more than 48 hours has been denied. 7. The Bombay Police (Punishments and Appeals) Rules, 1956 provide for the deemed suspension of a police officer who is detained in custody for a period in excess of 48 hours. Rule 3(1-A) (ii) provides as follows: “A Police Officer who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty- eight hours shall be deemed to have been suspended by the appointing authority under the rule.” 8. The State Government issued a Government Resolution on 20th July, 2006 reiterating that when a government servant is suspended in serious cases where a criminal trial is to take place, the employee should generally be continued under suspension until the final result of the trial. The Government Resolution of 20th July, 2006 seeks to bring about clarity in matters relating to the issuance of orders of suspension where a criminal offence has been registered against an employee of the government. Various eventualities are 10 classified in Clause (2) of the Government Resolution and insofar as the present case is concerned what is relevant is sub clause (D) which provides as follows :- D) Criminal offence of serious Nature has been registered. The investigation has been completed and sanction to prosecute (to file the charge sheet) has also been granted or such sanction is not necessary. Till the decision of the Criminal Case the suspension be continued. Because it is prima facie proved that there is evidence against the government servant in respect of the criminal offence of serious nature. However, the government servant has been discharged from this offence, his suspension should not be continued even if appeal, revision or review has been filed in the Court as presumption that the concerned servant is guilty does not survive due to his discharge. 9. The Fourth Respondent was arrested on 20th December, 2002. An order was passed on 21st December, 2002 by the J.M.F.C. at Pune on the application for remand. The order records that the accused was admitted to a hospital in Pune and that as a result till he came to be produced before the J.M.F.C. magisterial custody could not be granted. The order of the J.M.F.C. stipulates that the Investigating Officer would produce the medical records of the accused and until then the accused will be under detention and 11 control of the police inspector under Section 57 of the Code of Criminal Procedure 1973. Thereafter, by a further order of 21st December, 2002 the J.M.F.C. while noting that the medical certificate had been produced before him directed that the accused was being allowed to remain under the charge and care of the hospital at Pune, during which period he would remain under the detention and control of the police inspector under Section 57 of the Code of Criminal Procedure. Subsequently the order was extended till 30th December, 2002. On 30th December, 2002 the J.M.F.C. was informed that the accused was to be discharged from hospital on 2nd January, 2003 and a medical opinion was sought from the Sassoon Hospital on whether he was in a position to travel from Pune to Mumbai. The doctors of the Sassoon Hospital certified on 1st January, 2003 that the accused was stable enough to be shifted to Mumbai. On 1st January, 2003 the J.M.F.C. at Pune recorded that the accused had been produced before him at 4.00 p.m. Since an offence under Section 304 had been registered at the Pant Nagar Police Station, he was required to be produced before the Court having jurisdiction over the offence. The J.M.F.C. at Pune accordingly issued directions for shifting the 12 Fourth Respondent to Mumbai for being produced before the Court of the Metropolitan Magistrate. On 2nd January, 2003 the Additional Chief Metropolitan Magistrate passed an order recording that the accused was taken into jail custody and directions were issued for the medical examination of the accused. The Fourth Respondent was enlarged on bail at 4.30 p.m. by an order dated 3rd January, 2003. The sequence of events would demonstrate that the Fourth Respondent was detained in custody for a period in excess of forty eight hours. 10. The Fourth Respondent was regarded as being under deemed suspension with effect from 20th December, 2002 which was the date on which he was placed under arrest. The order passed by the Additional D.G. (Administration) withdrawing the order of deemed suspension proceeds on the basis that between 21st December, 2002 till 2nd January, 2003, the Fourth Respondent was detained under Section 57 of the Code of Criminal Procedure. Consequently, it has been stated that the Fourth Respondent was in custody from 14.15 hours on 2nd January, 2003 to 16.30 hours on 3rd January, 2003 and 13 since this period in custody did not exceed 48 hours, the deeming fiction under Rule 3(1-A) of the Bombay Police (Punishments and Appeals) Rules 1956 was not attracted. 11. There is merit in the submission which has been urged on behalf of the Petitioners that the order that has been passed in the present case revoking the deemed suspension is contrary to the provisions of the rules and is in the teeth of the Government Resolution issued by the State Government on 20th July, 2006. For one thing, the Government Resolution clearly enunciates that when a criminal offence of a serious nature has been registered and investigation has been complete, the order of suspension should continue till the decision of the criminal case. Criminal offences of a serious nature are defined to be those which are punishable with imprisonment of three years or more and cognizable and non- bailable. The Fourth Respondent who is charged with an offence under Section 304 of the Penal Code fits the description of a person who is charged of a 'serious offence' within the meaning of the Government Resolution dated 20th July, 2006. Even otherwise, it is 14 evident from the reply filed by the State that the Fourth Respondent was arrested at Pune on 20th December, 2002. Even if the period between 21st December, 2002 and 1st January, 2003 is treated as detention under the provisions of Section 57 of the Criminal Procedure Code, it is evident that the Fourth Respondent was detained in custody for a period in excess of 48 hours so as to warrant the application of an order of deemed suspension under Section 3(1-A) of the Rules. 12. The judgment of the Supreme Court in Chaganti Satyanarayana v. State of Andhra Pradesh1 relates to the date with effect from which the period of 90 days or 60 days has to be computed under Section 167(2) of the Criminal Procedure Code 1973 and is therefore distinguishable. The Supreme Court held that the earlier period when the accused is in the custody of a public officer in exercise of his power under Section 57 cannot constitute detention pursuant to a authorisation issued by the magistrate. Hence, the total period of 90 days or 60 days can begin to run only from the date of the order of remand. In the present case, the Court is concerned with 1 1986 (3) SCC 141. 15 whether the conditions necessary for the accused officer being under deemed suspension under Rule 3(1-A) have been brought into existence. For the reasons already indicated that question would have to be answered in the affirmative. 13. What Rule 3(1-A) ii contemplates, for the deeming fiction to apply is detention in custody – on a criminal charge or otherwise – for a period longer than forty eight hours. As the Supreme Court observed in Directorate of Enforcement v. Deepa Mahajan2 'custody' and 'arrest' are not synonymous terms : “in every arrest there is custody but not vice versa”. The Fourth Respondent was detained in custody for more than forty eight hours. The basis on which the “deemed suspension” was lifted is plainly erroneous. 14. We are conscious of the principle that ordinarily in service matters a public interest litigation would not be maintainable. This has been reiterated by the Supreme Court in Dr. Duryodhan Sahu v. Jitendra Kumar Mitra3. In Duryodhan Sahu’s case the Supreme 2 AIR 1999 SC 1775 at para 50 pg 1789. 3 AIR 999 SC 114. 16 Court held that an application before the Tribunal under the Administrative Tribunals Act, 1985 could be made only by a person aggrieved by any order pertaining to a matter within the jurisdiction of the Tribunal. A total stranger to the service, the Supreme Court held, could not make an application before the Tribunal and if public interest litigation at the instance of strangers is allowed to be entertained, the object of speedy disposal of service matters would stand defeated. In Gurpal Singh v/s. State of Punjab4 the judgment of the High Court setting aside the appointment of the appellant as an auction recorder of a market committee was set aside by the Supreme Court holding that a public interest litigation ought to be entertained with care and circumspection with a view to ensuring that private disputes are not sought to be settled in the garb of public interest. The general principles which must underlie a bonafide petition filed in the public interest have been reiterated in Neetu v. State of Punjab5. 15. In the present case, the issue which arises before the Court 4 AIR 2005 SC 2755. 5 AIR 2007 SC 758. 17 does not merely raise a question relating to the conditions of service of an officer in the police force, but raises important questions relating to the fair dispensation of criminal justice. The allegations against the Fourth Respondent are serious. He has been charged of an offence under Section 304 of the Penal Code. The circumstances arise out of a police firing on citizens who were protesting the desecration of the statue of Dr. Ambedkar. We would decline to enter upon the merits of those allegations since the criminal trial is still pending. But be that as it may, the Government Resolution issued by the State on 20th July, 2006 contemplates that where a criminal trial is to take place on an allegation of the commission of a serious offence, the government servant who is an accused should be placed under suspension pending the conclusion of the trial. The reason for this principle is not far to seek. Where a police officer has been charged with the commission of a serious criminal offence allowing the officer to remain free from suspension and as an active member of the service would seriously affect the credibility and fairness of the criminal trial. Witnesses who come forth to depose are likely to be overawed by the fact that the accused continues to wear the uniform 18 and to be in the active line of duty. The process of dispensing criminal justice must be fair, for victims of violence to have confidence in the process and to ensure that societal interest in the due prosecution of offenders is not compromised. Victims are in several cases impoverished and unable by illiteracy, social subjugation and fear to question those in authority. They suffer in silence. Their marginalised status in the social set up is coupled with economic deprivation. There is a deep sense of fear and, what is worse, a sense of apathy about the effectiveness of the system, and the earnestness of those who are meant to protect them. The concern over the protection of their human rights must have paramount attention. Be they dalits or minority groups, constitutional protections must have a real and substantive meaning to their lives. In the present case, the petition has not been motivated by an oblique desire to serve private ends. The two Petitioners before the Court are advocates and social activists and they have disclosed before the Court that they hold, what are termed as watching briefs on behalf of the victims of the police firing. The protection of the human rights of victims of police firing cannot be reduced to a meaningless 19 exercise. The legitimacy of the administration of criminal justice will be eroded and public confidence shaken if a police officer against whom an allegation of the commission of a serious offence is to be adjudicated, continues to be in the line of duty. Victims must not believe that this will be a mockery of dispensing criminal justice. Fear and a sense of resignation that justice will not be done at the trial are grave dangers to the legitimacy of the process. The constitutional court under Article 226 is duty bound to ensure that such things do not come to pass. 16. The Petition is allowed. The Fourth Respondent shall continue to remain under deemed suspension from 23rd December, 2002 pending the disposal of Sessions Case 22 of 2003 before the Additional Sessions Judge at Sewree. In the circumstances of the case, there shall be no order as to costs. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.