Before the Madurai Bench of Madras High Court Dated : 21.10.2011 Coram : The Honourable Mr.Justice V.RAMASUBRAMANIAN Writ Petition (MD) No.12208 of 2011 and M.P.(MD) Nos.1 and 2 of 2011 P.Sivakumar ...Petitioner Vs 1.The District Collector, Ramanathapuram Ramanathapuram District. 2.The Superintendent of Police, Ramanathapuram, Ramanathapuram District. 3.The District Collector, Madurai District. 4.The Commissioner of Police, Madurai City. 5.The Action Committee against Paramakudi Police Firing rep.through Co-ordinator P.Chandrabose, General Secretary Thiagi Immanuel Peravai, Vasanthapuram Paramakudi. ...Respondents PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Mandamus, directing the respondents 1 to 4 to prevent holding of public enquiry/ public inquest in respect of firing incident took place at Paramakudi on 11.9.2011. For Petitioner : Mr.G.R.Swaminathan O R D E R The petitioner, who is employed as the Inspector of Police in Paramakudi Town Police Station and who is now transferred to another station, has come up with the above writ petition, seeking a Mandamus, directing the respondents 1 to 4 to prevent the holding of a public enquiry/public inquest, in respect of the firing incident that took place at Paramakudi on 11.9.2011. 2. Heard Mr.G.R.Swaminathan, learned counsel for the petitioner. 3. A few non-Governmental organisations appear to have come together and constituted a Committee known as “The Action Committee against Paramakudi Police Firing”, for conducting an enquiry and recording findings of facts which had led to the police firing at Paramakudi on 11.9.2011. The said Committee is the fifth respondent herein. Though the affidavit and the documents filed by the petitioner along with his writ petition, do not disclose the constitution of the fifth respondent, the learned counsel for the petitioner produced at the time of hearing of the writ petition, a copy of the Fax message received by the Office of the Superintendent of Police, Ramanathapuram, on 18-10-2011. From the said Fax, it appears that the 5th respondent-committee is headed by a retired 1 https://hcservices.ecourts.gov.in/hcservices/ Judge of the Bombay High Court and it comprises of several individuals who are either retired Government servants or persons who are social activists. 4. In the Fax message sent on 18-10-2011 by the Chairman of the committee to the Superintendent of Police, Ramanathapuram, it is stated that at the instance of the Committee, a public inquest is proposed to be conducted on 22.10.2011 at Paramakudi in respect of the incident that perhaps became the 9/11 of Paramakudi. Challenging the right and the jurisdiction of the 5th respondent committee to hold such a public inquiry/ inquest, the petitioner, who was serving as the Inspector of Police, Paramakudi Town Police Station on the fateful day, but who was subsequently transferred, has come up with the above writ petition. 5. The challenge of the petitioner to the right and jurisdiction of the fifth respondent committee is two fold. They are: (i) There are at least four public interest litigations pending on the file of this Hon'ble Court, seeking various directions to the State of Tamilnadu as well as to the Union of India, seeking the constitution of independent enquiry committees for visiting the affected areas and for conducting enquiries. As the Inspector of Police who worked at that time in Paramakudi Town Police Station, the petitioner has been impleaded as one of the respondents in almost all the public interest litigations. The State Government has also constituted an Enquiry Commission headed by a retired Judge of this Court. Therefore, the first grievance of the petitioner is that there cannot be any parallel enquiry by a Committee which has no statutory authority; (ii) The second grievance of the petitioner is that any kind of parallel enquiry by such a body of individuals, comprising of retired Judges of High Courts and retired Officers of All India Services, into a matter which is sub-judice, would actually interfere with the course of investigation. Even the trial by media has come to be deprecated by Courts on the ground that they may tend to influence the course of administration of justice. Therefore, any inquiry conducted by such a committee would have an indirect bearing or influence both upon the investigating agencies and upon the trial courts, thereby depriving the accused of a fair trial. 6. In support of the above contentions, Mr.G.R.Swaminathan, learned counsel for the petitioner, relied upon the following decisions : (i) State Vs. Editors of Matrubhumi (AIR 1954 Orissa 149) (ii) In Re P.C.Sen (AIR 1966 Calcutta 411) (iii) Ram Dulari Saran Vs. Sri Yogeshwar Sri Ram Balbhacharya Ji (AIR 1969 All. 68) (iv) Brig.E.T.Sen Vs. Edatata Narayanan (AIR 1969 Delhi 201) (v) Sidhartha Vashisht @ Manu Sharma Vs. State (AIR 2010 SC 2352). 2 https://hcservices.ecourts.gov.in/hcservices/ 7. I have carefully considered the objections of the petitioner to the public enquiry/ public inquest proposed to be conducted by the fifth respondent. I have also considered the law laid down in the decisions cited by the learned counsel for the petitioner. 8. At the outset, it must be the pointed out that the fifth respondent is not even a body corporate. It is a committee comprising of a few individuals, who have come together at the behest of some non- governmental organisations, purportedly for a public cause. As pointed out earlier, though in the writ petition, the petitioner has not named the persons who constitute the fifth respondent-Committee, the learned counsel for the petitioner produced, at the time of hearing, a copy of the Fax message received from the fifth respondent, addressed to the second respondent. The communication contains the names of about 18 individuals who constitute the Action committee. A perusal of the list shows that it is headed by a retired Judge of the Bombay High Court. The other members of the Team include another retired Judge as well as retired IAS and IPS Officers and persons representing non-Governmental organisations. The committee also has lawyers apart from a former Vice Chancellor. Obviously, the committee has no statutory authority or recognition. It is neither the State nor an instrumentality of State. It cannot issue summons nor can it compel the petitioner or anyone else to give evidence. Therefore, the very amenability of this committee to the writ jurisdiction of this Court, is in doubt. 9. It is true that a writ can be maintained even against private bodies, in respect of matters concerning public interest and public duties. But the task that the 5th respondent committee has taken upon itself, as seen from the Fax message, is just to find out the facts and circumstances that led to the police firing at Paramakudi. Therefore, the exercise so undertaken by the fifth respondent, unless found to be contrary to public interest, cannot be prevented by the issue of a Writ of Mandamus. The grievance of the petitioner is not that the exercise undertaken by the fifth respondent is contrary to public interest, but that it is contrary to his private interest. Therefore, the very maintainability of the writ petition is doubtful. 10. Even if the claim of the petitioner is pitched on the field of fundamental right guaranteed to him under Article 21, it would make no difference. The very purpose for which the fifth respondent claims to have undertaken a public inquiry, is also pitched on the very same Chapter of The Constitution, namely, the one relating to Fundamental Rights. While the petitioner seeks to trace his right to Article 21, the victims and the Fact Finding committee may trace their rights to Article 19. Therefore, unless the petitioner establishes that the fifth respondent proposes to do something prohibited by law, there is no way their attempt to conduct an independent enquiry to gather facts, can be curtailed especially by issuing a Writ of Mandamus. 11. Coming to the first question as to whether a parallel enquiry can be conducted in respect of such incidents by some independent non- Governmental organisations, it is needless to point out that law has travelled a long distance, in the past few decades, from the confines of the Code of Criminal Procedure. Traditionally, the Code of Criminal Procedure knew of only one investigation by the Station House Officer. Today, law has recognised several types of parallel enquiries, apart from 3 https://hcservices.ecourts.gov.in/hcservices/ the investigation that could be conducted in terms of the Code of Criminal Procedure. For instance, parallel enquiries by various Commissions such as the National/State Human Rights Commissions, National Commission for Women, National Commission for Scheduled Castes and Scheduled Tribes and the like, have come to be recognised by law itself. Apart from these developments that had taken place in criminal jurisprudence even statutorily, we have come to a stage where Special Investigation Teams (SITs) were constituted in a few cases which have come to be monitored by the Courts themselves, at least upto the stage of filing of final reports. The argument that these parallel enquiries and the monitoring by Courts do not have the sanction of the law/Code of Criminal Procedure, has not carried any weight so far. This is in view of the fact that the domestic as well as international law relating to human rights have travelled a very long distance in the past more than 6 decades. 12. Even International Organisations, which have a conflict- resolving or a peace keeping mandate or which deal with human rights problems, today possess an implied power to establish ad hoc fact finding bodies. Ever since World War II, the international community has grown increasingly towards the development of a system of international jurisdiction, complementary to that of domestic courts, even to try people accused of genocide, war crimes and crimes against humanity. The Four 1949 Geneva Conventions and the Protocals Additional I and II, led to the recognition of universal jurisdiction against grave violations of human rights. The Armed Conflict in Balkans led the United Nations to set up an International Criminal Tribunal in The Hague, Netherlands. Thereafter, Special Courts were set up to prosecute domestic and international crimes in places like Kosovo, Bosnia, East Timor, Sierra Leone, Cambodia and recently in Lebanon. 13. As stated above, even International Organisations, such as Amnesty International go on fact finding missions. Ever since 1967, the United Nations Commission on Human Rights has established several fact finding bodies. The Economic and Social Council Resolution 1503 gave the United Nations Commission on Human Rights, the explicit mandate to establish ad hoc investigation committees for establishing facts in regard to situations or flagrant violation of human rights. Therefore, there are instances where such ad hoc investigative committees were engaged, such as Israeli Practices, the Human Rights Situation in Chile, the Apartheid Policy, etc. 14. On 3.4.2006, the General Assembly adopted a resolution bearing No.60/251 resolving to create a Human Rights Council. The Resolution acknowledged the fact that non-Governmental organisations play an important role at the national, regional and international levels in the promotion and protection of human rights. The Human Rights Council recently constituted in April 2009, a fact finding mission on Gaza Conflict, to investigate all violations of International Human Rights Law and International Humanitarian Law in the context of military operations conducted between December 2008 and January 2009. As a matter of fact, the Editors Guild of India itself sent a fact finding mission to Gujarat in the aftermath of the communal riots that took place in February 2002. On the environmental front, it is the contribution made by the fact finding teams of non Governmental organisations, which had contributed to the development of strong environmental law. Therefore, the argument that 4 https://hcservices.ecourts.gov.in/hcservices/ there cannot be a parallel inquiry by a non governmental organisation, cannot be accepted. 15. Coming to the decisions relied by the learned counsel for the petitioner, it is seen that the decision in the State Vs. Editors of Matrubhumi arose out of contempt of court proceedings. Even the decisions in Re P.C.Sen, Ram Dulari Saran and, Brig.E.T.Sen, all arose out of the Contempt of Courts Act. In those cases, the Courts were actually concerned with the alleged interference by the media or by individuals in the course of administration of justice. Therefore, the principles laid down in those decisions, which to some extent, deprecated the practice of even the media propagating news tending to interfere in the course of administration of justice, cannot apply to the case on hand. 16. If the petitioner thinks that the conduct of a parallel enquiry by the fifth respondent during the pendency of the public interest litigations before the Division Bench of this Court, would tantamount to contempt of Court, the remedy for the petitioner lies there and not by way of a writ petition, seeking a Mandamus. Therefore, the said contention cannot be accepted. 17. Drawing a parallel from the Justice Sampath Commission switching over to hands off mode, after the entertainment of the public interest litigations, it was contended by Mr.G.R.Swaminathan, learned counsel for the petitioner that the fifth respondent should also have refrained from undertaking ay inquiry. But there is hardly any comparison between the Commission of Enquiry constituted by the Government and the fact finding mission into which the fifth respondent has now ventured. As a matter of fact, there was no impediment for even the other Commission constituted by the Government to proceed with the enquiry. If that commission does not choose to proceed, it cannot be taken to be a precedent for the fifth respondent not to go ahead with the fact finding enquiry. 18. In so far as the decision of the Supreme Court in Sidhartha Vashisht is concerned, the said case arose out of the orders of the Delhi High Court in a criminal appeal, reversing the acquittal of the accused. While dealing with the said case, it was brought to the notice of the Supreme Court that the fortunes of the accused in the said case fluctuated from one extreme to another, on account of the public opinion created by the media and that therefore the accused was deprived of a fair opportunity to defend himself against a system which had ganged up with the media. It was in this context that the Supreme Court held in paragraph 147 of the said decision that there is danger of serious risk of prejudice, if the media exercises an unrestricted and unregulated freedom such that it publishes photographs of the suspects from the accused before identification parades are conducted. But even while holding so, the Supreme Court added a note of caution in the last paragraph, pointing out that every effort should be made by the print and electronic media to ensure that the distinction between trial by media and informative media is maintained. 19. At the outset, I am not concerned here, with any print or electronic media attempting to poke its nose into the investigation. The fifth respondent cannot be compared to the media. Whether the exercise undertaken by someone would fall under the category of collection of information for larger public good or would fall under the category of 5 https://hcservices.ecourts.gov.in/hcservices/ interference in the course of administration of justice, is something that would depend upon who undertakes the exercise and in what manner they go about it. There is a vast distinction between what the media seeks to do in such circumstances and what fact finding bodies seek to so. Therefore, today, there can be no impediment for any voluntary body to collect the information on a fact finding mission and also arrive at their own conclusions. It is needless to point out that the conclusions reached by such fact finding committees are not binding on any authority, including the Courts. The courts will be obviously carried away only by the evidence let in before them and not by the newspaper reports. The fifth respondent cannot even compel the petitioner or any of the Officers to appear and testify before them. Therefore, the petitioner cannot be said to be aggrieved by the exercise undertaken by the fifth respondent. 20. In view of the above, I find no merits in the writ petition and hence the writ petition is dismissed. Consequently, the connected miscellaneous petitions are also dismissed. Sd/- Assistant Registrar (T&P) /True copy/ Sub Assistant Registrar To 1.The District Collector, Ramanathapuram, Ramanathapuram District. 2.The Superintendent of Police, Ramanathapuram, Ramanathapuram District. 3.The District Collector, Madurai District. 4.The Commissioner of Police, Madurai City. +cc to The Special Government Pleader, Sr.No.36896 SVN/RS GH : 08.11.2011 : 6p/6c WP.NO.12208 OF 2011 & MP.NOS.1 AND 2 of 2011 21.10.2011 6 https://hcservices.ecourts.gov.in/hcservices/