IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16/10/2003 CORAM THE HONOURABLE MR.JUSTICE V.KANAGARAJ CRIMINAL ORIGINAL PETITION No.9188 OF 2003 AND CRL.M.P.No.3158 OF 2003. 1.K.Thilageswaran 2.M.Boopal 3.Kabilan 4.A.Rahul 5.Porkodi 6.P.Vijendran 7.Chithra 8.Palanivel ... Petitioners -Vs- 1.State of Tamilnadu, rep.by The Secretary to Government, Home Department, Secretariat, Chennai-600 009. 2.The Director General of Police, Government of Tamilnadu, Police Headquarters, Chennai-600 004. 3.The Commissioner of Police, Chennai City, Chennai-600 008. 4.The Superintendent, Central Prison, Chennai. 5.Central Bureau of Investigation, rep.by its Joint Director, Shastri Bhavan, Haddows Road, Chennai-600 006. ... Respondents Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure for the relief as stated therein. For petitioners : Mr.P.Rathinam ^For R.1 to R.4 : Mr.I.Subramaniam, Public Prosecutor, High Court, Madras. For R.5 : Mr.N.Ranganathan, Spl.P.P. :O R D E R The petitioners, all Advocates eight in number, have filed the above criminal original petition as against the Government of Tamil Nadu and its Police officials and the Superintendent of Police, Central Prison, Chennai, impleading also the Central Bureau of Investigation praying to direct the fifth respondent/CBI to take up the investigation in Cr.No.333 of 2003 on the file of J-1, Saidapet Police Station, Chennai and investigate the same under the direct supervision of the Joint Director, CBI, Chennai and proceed with the same as per law, direct the first respondent to keep away the police personnel, against whom prima facie case is found, from the city of Chennai till the investigation of the case in the said crime number is completed and to order adequate compensation to the families of the deceased Rajaram and Saravanan. 2. In the affidavit filed in support of the above criminal original petition sworn by the first petitioner on his behalf and on behalf of the other petitioners, they would submit that they are fully aware of the facts regarding the death of the two persons viz. Rajaram and Saravanan in the alleged encounter with the police on 25.3.2003 at about 7.00 p.m. which sent shock-waves to the entire Tamil Nadu and such deaths are reportedly taking place without the minimum check and hence they are filing the present petition to curb the menace of killing people in the so-called encounters for intervention and prevention of such execution. 3. The petitioners would further submit that on the fateful day, those two persons were killed at Kotturpuram road close to the Bridge in Chennai; that they gathered information and felt that the police version of the encounter and vanishing of the white Qualis Toyota van was distorted and baseless; that one of the deceased Rajaram was in judicial custody and was escorted to the Courts of Metropolitan Magistrates No.IX and XVII, Saidapet, Chennai for remand extension; that it was pre-planned by the police officers and that the leading English Daily "The Hindu", dated 26.3.2003 carried the news item under the caption "Two militants killed at Chennai shootout". Extracting the relevant portions from the news item of `The Hindu', the petitioners would brand the police version to be unbelievable and artificial and they would further state that they realised that they have to approach the Tamil Nadu State Human Rights Commission which could issue appropriate direction and get the copies of the relevant documents; that they contacted the Member of the Commission and requested speedy action and the Member has ordered notice to the third respondent. 4. The petitioners would further submit that on 28.3.2003, some of them visited the place and inquired with the residents of that locality and all of them uniformly replied that they did not hear any firing sound, but their categorical statement is that the police stopped the vehicular movement on the whole stretch of road from 6.00 p.m. onwards on 25.3.2003 and two or three days prior to the incident, the pavement vendors were cleared; that they approached the Human Rights Commission for conducting the second post mortem on the bodies of the deceased; that the third respondent's claims are supported by the first and second respondents stoic silence; that the attitude of the first and second respondents is only showing green signals for such barbaric violation of human rights and giving impression that they are making efforts to suppress the truth and to get a favourable report regarding the post mortem conducted at the Government Royapettah Hospital; that their experiences in dealing with such cases are that the Doctors are not allowed to discharge their duties in the conduct of the post mortem and they are won over and hence they feel that a second post mortem is necessary; that on a similar situation, in an earlier occasion, the Division Bench of this Court, by its order dated 10.4.199 2 in W.A.No.409 of 1992 has ordered exhumation of the dead body of one Virrupalingam from the grave and to get a fresh post mortem examination conducted and report accordingly and directed the Investigating Officer to nominate two Medical Officers, of whom one must be Dr. Chandra Sekaran, the then Director of the Forensic Science Laboratory, Madras; that since the Human Rights Commission is not properly functioning on account of the vacancy of the Chairperson and another Member, the petitioners are approaching this Court for the conduct of repost mortem on the bodies of the deceased Rajaram and Saravanan; that none of the relatives have claimed the bodies and no official decision has been taken regarding the disposal of the bodies. 5. The petitioners further furnishing their attempt made with The Human Rights Commission praying for a second post mortem on the bodies of the deceased on account of the handicap of the commission and due to the non-availability of the only Member, no speedy relief was able tobe arranged. Furnishing the details regarding their contribution in bringing out the gang rape committed on Rita Mary by the guardians of law under judicial custody in Sub Jail, Gingee and her illegal confinement with the gang of brothel keepers at Attur and at Tindivanam where she was forcibly introduced in the flesh trade and ultimately in the Sub Jail at Gingee and the foisting of the criminal cases against four youths who came to her rescue and the earnest endeavour made on the part of the petitioners in getting justice for such atrocities committed on the part of the police in uniform in getting compensation for the victim through Court. The petitioners would give the plight of one of the deceased Rajaram to escape from the clutches of the Police, who were after his blood ultimately making his arrest on 19 .7.2002. 6. The petition would further go to show that the State Administration is being controlled by various groups on caste line who indulge in abuse of the state power thus chasing the youth to extremism and would also cite the example of a lady Advocate viz. Mrs.Nirmala Rani, who was unreasonably chargesheeted under the provisions of the SC & ST (PA) Act by sheer abuse of power by the police at Trichy and quoting from the order of this Court pertaining to the remedial measures recommended to the Government against such atrocities of the Police. The petitioners would then deal with the case of Saravanan, who was allegedly used by the Police as an informer and since he was not cooperative in complying with the dictates of some of the police officers, he was also targeted and various groups of police personnel conspiring with each other evolved a strategy to annihilate both the deceased and masterminded the fake encounter and eliminated the deceased. The petitioners would then start narrating as to how the protective prohibitions of the constitutional mandate provided for those who are in custody of the police and how warding-off those provisions, the arrested persons are ill-treated at the hands of the police keeping under illegal detention 7. At this juncture, the petitioners would cite Justice Khalid Commission's recommendations against Human Rights violations and provisions made for compensation to the victims and their families. 8. The petition would further deal with as to how the innocent Dalits were brutally attacked by vested interests and how rarely the State administration is able to render its assistance to the victims since it is divided on caste lines thus the situation working against the interests of the Dalits, citing facts and circumstances, which occurred in the past. 9. In the final phase of the petition, the petitioners would cite the case registered regarding the incident said to have occurred on 25 .3.2003 in Cr.No.333/2003 under Sections 341,332,307 and 302 IPC r/w.25(1)(a) and 27 of the Arms Act on the file of J1 Saidapet Police Station and accused have been described as `three identifiable persons', who came in a Qualis van and how in spite of the receipt of the FIR by the Court on 26.3.2003, they were not permitted to peruse the copy of the FIR; that they would further state that the deceased in the occurrence were in judicial custody and there is strong public opinion against the theory put forward by the police and therefore it is but proper to get the above case investigated by the independent agency like the 5th respondent. Quoting from Para Nos.11 of the judgment of the Honourable Apex Court in SUNIL BHATRA vs. DELHI ADMINISTRATION reported in AIR 1980 SC 1579 and suggesting certain norms to be followed and stating for that the deceased Rajaram was in judicial custody and Saravanan was taken into illegal custody days prior to the occurrence and hence adequate compensation need to be granted to the members of the respective families, the petitioners would pray for the reliefs extracted supra. 10. In the counter affidavit filed on behalf of the respondents 1 to 4, the Assistant Commissioner of Police, Central Crime Branch, Chennai would submit that the inherent jurisdiction under Section 482 of the Code of Criminal Procedure could be invoked only in relation to a proceeding before the High Court or any other Subordinate Court which must have a judicial character and not of an executive or administrative one and admittedly, in the case on hand there is no such proceeding either before this Court or in other subordinate criminal Court in respect of which the jurisdiction vested under Section 482 Cr.P.C. is sought to be invoked by the petitioners; that the above criminal original petition proceeds merely on conj ectures and surmises, sought to be buttressed by certain newspaper reports, which cannot form the basis for seeking to invoke jurisdiction under Section 482 of the Code of Criminal Procedure; that no materials are furnished in support of the petition, so as to warrant interference; that the matter is pending with the Executive Magistrate in the proceedings initiated under Police Standing Order 150 (New Code) on conclusion of which, a report would be submitted to the State Government for further action. 11. The respondents would narrate the facts and circumstances of the case stating that on 25.3.2003, Thiru Rajaram who was an accused in Cr.No.1595/2000 of Vadapalani Police Station for the offences punishable under Sections 4(b) and 5 of the Explosive Substances Act, 1908 was being escorted in a police jeep from the XVII Metropolitan Magistrate's Court, saidapet, Chennai to the Central Prison, Chennai; that around 7.10 p.m., while the police jeep was proceeding down Kotturpuram Bridge, one Kumar @ Saravanan and his associates, who came in a Qualis car with a fake registration number plate, waylaid the police jeep and attempted to rescue Thiru Rajaram from the custody of the escort police and opened fire at the police personnel resulting in an Assistant Commissioner of Police and Inspector of Police sustaining bullet injuries; that Thiru Rajaram utilising this opportunity got down from the police jeep to escape from the custody and two police constables held him and at this juncture, Thiru Saravanan again fired at the constables, which unfortunately hit Thiru Rajaram; that when the police party in turn opened fire to defend themselves, Thiru Saravanan sustained bullet injuries and in the melee when a constable fired at the Qualis Car with his Carbine Weapon (machine gun), the person who was driving the Qualis car and the associates of Thiru Saravanan escaped from the scene and all the injured persons were immediately removed to the Government Royapettah Hospital; that the Assistant Commissioner and the Inspector of Police for their bullet injuries got admitted for treatment and the Doctors in charge of the Hospital, examining Thiru Rajaram and Saravanan announced them as `brought dead'. 12. The respondents would further submit that on the basis of the complaint lodged by the Assistant Commissioner of Police, Saidapet, a case in J1 Saidapet Police Station Cr.No.333/2003 was registered for offences punishable under Sections 341,332,307 and 302 IPC r/w. Section 25(1)(a) and 27 of the Indian Arms Act and the said case got transferred to the Central Crime Branch as per the orders of the Commissioner of Police in his proceeding No.526/COP/Camp/2003, dated 25.3.2003, which is pending investigation; that based on the FIR, the RDO is conducting the proceedings under PSO 150; that the P.A.(General) to Collector of Chennai District-cum-Revenue Divisional Officer conducted the inquest over the dead bodies of Rajaram and Saravanan and witnesses have been examined during the course of the inquest and the Revenue Divisional Officer's report is awaited; that in the above true facts and circumstances, it is incorrect to suggest that there was a fake encounter; that the very fact that the police personnel forming the escort party sustained bullet injuries and the Qualis car had a fake registration number plate, would clearly show that it was only in the course of the attempt to rescue Thiru Rajaram by his associates using firearms, the occurrence took place; that the averments of the petition are not based on any eye witness account; that the averments contained in para No.3 of the petition merely incorporate a newspaper report, which is inadmissible in evidence as has been consistently held by the Honourable Supreme Court and this High Court; that the averments contained in Paragraphs 5 and 6 are based on surmises and conjectures besides being frivolous and irresponsible insofar as it is concerned with the allegations that the Doctors are amenable to police or that they are not allowed to discharge their duties while conducting the post mortem; that the post mortem has been conducted by a team of Doctors viz. Dr.C.Manohar, the senior most Professor and Head of the Department Forensic Medicine in charge of the Kilpauk Government Medical College Hospital and Government Royapettah Hospital, Chennai ably assisted by Dr.A.N.Shanmugam, who is an Assistant Professor of Forensic Medicine attached to the Government Royapettah Hospital, Chennai and the post mortem has been done in accordance with the guidelines issued by the National Human Rights Commission and the same has also been videographed; that the dead body of Thiru Saravanan was handed over to his mother Smt.Kalyani who claimed it, but since Rajaram abandoned his family for nearly 15 years, his relatives did not show any interest to receive the body from the mortuary. 13. Further denying the rest of the allegations of the petition, the counter affidavit would specifically mention that the cases cited in the criminal original petition have no relevance to the case in hand. The counter affidavit would set out the details of the cases in which Thiru Rajaram had earlier involved totalling 19 in number registered under various police station crime numbers for offences punishable under various sections of the IPC, and Explosive Substances Act, most of which are cases registered under Section 302 or Section 307 or both coupled with allied Sections of the IPC and Explosive Substances Act. Likewise, the cases registered against Saravanan earlier for his involvement have also been listed numbering three, two of which are murder cases and the other one attempt to murder with allied Sections. 14. Further denying the allegation that the State agencies are indulging in terrorism and the claim that Thiru Rajaram was championing the upliftment of the Dalits as incorrect, the counter affidavit would state that the khalid Commission was constituted totally under different circumstances further denying that Thiru Saravanan was in illegal custody, the respondents 1 to 4 would ultimately pray to dismiss the above petition as devoid of merits. 15. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for the petitioner, the learned Public Prosecutor representing the respondents 1 to 4 and the Special Public Prosecutor for CBI representing the 5 th respondent, it could be assessed that on the death of two persons viz. Rajaram and Saravanan in the alleged encounter with the police on 25.3.2003 at 7.00 p.m. near the Kotturpuram Bridge, Chennai while Thiru Rajaram who was an accused in Cr.No.1595/2000 of Vadapalani Police Station, Chennai was being escorted in a police jeep from the XVII Metropolitan Magistrate's Court, Saidapet, Chennai to the Central Prison, Chennai, around 7.10 p.m. at the time that the police jeep was proceeding down Kotturpuram Bridge, one Kumar @ Saravanan and his associates came in a Qualis car with a fake registration number plate, waylaid the police jeep and attempted to rescue Thiru Rajaram from the custody of the escort police and opened fire at the police personnel resulting in an Assistant Commissioner of Police and Inspector of Police sustaining bullet injuries; that making use of this opportunity, Thiru Rajaram got down from the police jeep to escape when he was held by two police constables and at this juncture, Thiru Saravanan again fired at the constables, which unfortunately hit Thiru Rajaram and when the police party in turn opened fire to defend themselves, Thiru Saravanan sustained bullet injuries and the associates of Saravanan escaped from the scene and that all other injured persons have been removed to the Government Royapettah Hospital; that the Assistant Commissioner of Police and the Inspector of Police, for their bullet injuries got admitted for treatment and the Doctors in charge of the Hospital, examining Thiru Rajaram and Sarava nan announced as ` brought dead'. 16. It further comes to be known that based on the complaint lodged by the Assistant Commissioner of Police, Saidapet, a case in J1 Saidapet Police Station Cr.No.333/2003 was registered for offences punishable under Sections 341,332,307 and 302 IPC r/w.Section 25(1)(a) and 27 of the Indian Arms Act and the said case got transferred to the Central Crime Branch under the orders of the Commissioner of Police in his proceeding no.526/COP/Campt/2003, dated 25.3.2003, which is pending; that based on the FIR, the Revenue Divisional Officer is conducting the proceedings under PSO 150; that the P.A.(General) to the Collector of Chennai District-cum-Revenue Divisional Officer conducted the inquest over the dead bodies of Rajaram and Saravanan and witnesses have been examined during the course of inquest and the RDO's report is awaited. 17. The petitioners, who are Advocates, growing suspicious of the manner in which the encounter is alleged to have taken place, as it has been narrated on the part of the respondents No.1 to 4 and further based on the newspaper reports of `The Hindu' the English Daily and `Dina Mani', the Tamil Daily and dubbing the version of the Police as a fake encounter and alleging that the killing of the two was masterminded and orchestrated by the police personnel in a pre-planned manner and causing the arrest of Saravanan, well before hand and making use of the opportunity while taking Rajaram to the Court and back to the prison, a story has been woven to the effect of the encounter to have taken place in the alleged manner, the respondent have come forward to file the above petition dubbing the same as unbelievable, improbable and artificial and further stating that there has been no trace of any such incident having taken place to their enquiry made and information collected from in and around the area within the periphery of which the shoot-out is alleged to have taken place, have come forward to pray for the reliefs extracted in the first paragraph supra. 18. Now the point for consideration is `whether the prayers of the petition could be answered and in what manner any order could be passed by this Court in the wake of the materials made available on record and in the circumstances of the case put forth in the above criminal original petition?' 19. In fact, the reliefs are specific and three in number, the first one being to direct the 5th respondent CBI to take up the investigation of the case in Cr.No.333 of 2003 registered by J1 Saidapet Police Station, Chennai and investigate the same under the direct supervision of the Joint Director, CBI, Chennai; the second relief being to direct the first respondent to keep away the police personnel, against whom prima facie case is found, from the city of Chennai till the investigation of the case is completed and the third relief being to order adequate compensation to the families of the deceased Rajaram and Saravanan. The second relief is somewhat consequential to the first one and could be answered in the event of answering the first relief in the affirmative and the third relief is an independent one unconnected to any order passed regarding the first two reliefs and in order to arrive at valid conclusions, besides considering the above pleadings of parties, it is relevant to consider the arguments advanced on the part of the respective learned counsel appearing on behalf of parties mentioned supra. 20. During arguments, the learned counsel appearing on behalf of the petitioners, besides tracing the facts and circumstances as narrated in the petition in a nutshell, would also cite the following three judgments: 1. 1994 Supp.(1) Supreme Court Cases 142 and 143 (R.S.SODHI vs. STATE OF U.P. AND OTHERS) 2. (1994) 1 Supreme Court Cases 616 (PUNJAB AND HARYANA HIGH COURT BAR ASSOCIATION, CHANDIGARH THROUGH ITS SECRETARY vs. STATE OF PUNJAB AND OTHERS) 3.The judgment of the Division Bench of the Andhra Pradesh High Court rendered in W.P.No.16868 of 1995 dated 14.8.1995. 21. In the first judgment cited above, in the Pilibhit police encounter deaths, when a request was made by way of Public Interest Litigation by an Advocate, for investigation by an independent agency, the Government of Utter Pradesh has objected to such course on ground that prompt action in handing over the investigation to an officer of IG level was taken by them besides transferring the suspected local police officers for unhindered inquiry further claiming that the investigation to be within its exclusive domain, the Honourable Apex Court, besides ordering an interim compensation of Rs.50,000/= in respect of each of the deaths by its order dated 21.8.1991 (reported in 1994 Supp(1) SCC 142), held (by its order dated 15.5.1992 reported in 1994 Supp (1) SCC 143): "... since the accusations are directed against the local police personnel, it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having though it both advisable and desirable as well as in the interest of justice to entrust the investigation to the Central Bureau of Investigation forthwith and we do hope that it would complete the investigation at an early date so that those involved in the occurrences, one way or the other, may be brought to book." 22. In the second judgment cited above, in a case of abduction and alleged murder of an Advocate, his wife and minor child, the Lawyers went on indefinite strike demanding inquiry by an independent agency and a petition in the nature of publ litigation has been filed