IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 WP(C).No. 30016 of 2008(W) ---------------------------------------- PETITIONER(S): ----------------------- V.S.NAVAS, SUB INSPECTOR OF POLICE, DISTRICT SPECIAL BRANCH, COCHIN CITY, ERNAKULAM. BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN RESPONDENT(S): ------------------------- 1. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, TRIVANDRUM. 2. THE INSPECTOR GENERAL OF POLICE, ERNAKULAM RANGE, ERNAKULAM. 3. THE COMMISSIONER OF POLICE, COCHIN CITY, ERNAKULAM. 4. THE ASSISTANT COMMISSIONER OF POLICE, ERNAKULAM. 5. SHRI.MOHAMMED ISMAIL, S/O.K.K.IBRAHIM, VETTOM, TIRUR P.O., MALAPPURAM DISTRICT WORKING AS MANAGER, PANTRY CAR OF MANGALA EXPRESS SOUTH RAILWAY STATION, ERNAKULAM. 6. SMT.P.K.USHA, D/O.KUNHICHERUKKAN, AGED 29 YEARS, THIRUVONAM HOUSE, EROOR VASUDEVA ROAD, PALARIVATTOM P.O., COCHIN. R1 TO R4 BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI R5 BY ADV. SRI.R.PREMCHAND R6 BY ADV. SRI.P.C.SASIDHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2010, THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING: sts WP(C)NO.30016/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE GOOD SERVICE ENTRIES VIDE NO.DO.NO.710/07 EC DATED 02/7/07, D.O.NO.707/07 EC. DATED 26/6/07, D.O.NO.659/07 EC. DATED 28/7/07, D.O.NO.868/07 EC. DATED AUGUST, 2007, D.O.NO.855/07 EC. DATED 12/8/07, D.O.NO.987/07 EC. DATED 31/8/07, D.O.NO.947/07/EC DATED 24/8/07, D.O.NO.989/07 EC. DATED 31/8/07, D.O.NO.1047/07 EC.DATED 11/9/07, D.O.NO.1264/07 EC. 29/10/07, D.O.636/07 EC. DATED JUNE, 2007, D.O.NO.1428/07 EC. DATED 10/12/07, D.O.NO.1429/07/EC. DATED 10/12/07, D.O.NO.106/08 EC. DATED 29/1/08, D.O.NO.310/08 EC. DATED 5/4/08, D.O.NO.313/08 EC. 5/4/08, D.O.NO.311/08 EC. DATED 5/4/08, D.O.NO.312/08 EC. 5/4/08 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. P2 COPY OF THE LAWYER NOTICE DATED 2/3/07 SENT BY 6TH RESPONDENT'S HUSBAND TO THE PETITIONER. P3 COPY OF THE COMPLAINT GIVEN BY THE 6TH RESPONDENT ON 13/3/07 BEFORE THE PETITIONER. P4 COPY OF THE COMPLAINT GIVEN BY THE 5TH RESPONDENT BEFORE THE STATE HUMAN RIGHTS COMMISSION ON 17/3/2007. P5 COPY OF THE NOTICE ALONG WITH REPORT OF THE PETITIONER VIDE NOTICE NO.05/P3 PTN/07EN4 DATED 4/4/07. P6 COPY OF THE COMPLAINT GIVEN BY THE 6TH RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE ON 10/5/07. P7 COPY OF THE FIR DATED 15/5/07 ISSUED BY THE S.I. OF PALARIVATTOM POLICE STATION. P8 COPY OF THE FINAL REPORT SUBMITTED BEFORE THE COURT ON CRIME NO.287/07 BY THE POLICE AUTHORITY. P9 COPY OF THE ORDER NO.C.O.NO.360/08/EC. DATED 7/4/08 ISSUED BY THE 3RD RESPONDENT. P10 COPY OF THE ORDER NO.D.O.NO.894/08 EC. DATED 8/9/08 ISSUED BY THE 3RD RESPONDENT. P11 COPY OF THE CHARGE MEMO DATED 18/7/08 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER, VIDE NO.1860/PR/08 ES-A. P12 COPY OF THE ORDER DATED 24/1/08 IN H.R.M.P.NO.987/07 OF THE KERALA STATE HUMAN RIGHTS COMMISSION, TRIVANDRUM. RESPONDENT'S EXHIBTS: R6(A) COPY OF THE NOTICE ISSUED TO THE 6TH RESPONDENT. /TRUE COPY/ sts P.S.TO.JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 30016 of 2008-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of December, 2010. JUDGMENT The order passed by the Human Rights Commission as per Ext.P12, directing to initiate departmental action against the petitioner and certain other officers, is under challenge in this writ petition. There is a further direction in Ext.P12 that the petitioner should be given any other duty other than law and order duty for a period of five years. 2. The narration of fats contained in the writ petition show the following: The petitioner joined service as Sub Inspector of Police on 8.12.2003 and has satisfactorily completed his probation in the cadre of Sub Inspector. Ext.P1 series show that he has received 19 Good Service Entries indicating the appreciation of his performance as police officer. 3. While the petitioner was working as Station House Officer, Palarivattom Police Station, the 6th respondent filed a complaint against Shri Sudheer @ Khalid, her husband, alleging ill-treatment and harassment. The complaint is dated 12.1.2007 which was entered into in the petition register. For enquiry, her husband was called to the police station and he was advised not to cause trouble to his wife and child. On 2.3.2007 the wpc 30016 of 2008 2 husband sent a lawyer notice to the petitioner, disclaiming his status as the husband of the 6th respondent and further giving a caution that he will approach the Human Rights Commission. Ext.P3 is the complaint filed by the 6th respondent on 13.3.2007 against her husband and his friends, alleging ill-treatment and torture from them. It is averred in the writ petition that the said complaint was again numbered as Petition No.89/PTN/07/EN4. According to the petitioner, no hasty action was taken against Mr. Sudheer. The fifth respondent, against whom allegations were made by the 6th respondent, was called to the police station along with other two persons. The alleged husband of the sixth respondent was an autorickshaw driver working as an employee of Shri Chandran who was supplying drinking water to the 5th respondent. The allegation was that the 5th respondent was always giving protection to Shri Sudheer after causing physical and mental torture to the 6th respondent. The preliminary enquiry revealed that it was the protection and shelter provided by the 5th respondent that encouraged Shri Sudheer for hurting the 6th respondent and Shri Sudheer was deliberately evading the police also. It is the case of the petitioner that the fifth respondent was neither arrested nor any case was registered against him, but he was brought to the police station only for the purpose of enquiry and ascertaining the whereabouts of Shri Sudheer. He was advised not to wpc 30016 of 2008 3 give any assistance to Shri Sudheer who was keeping away from police and was sent along with his friend Shri Haneef. 4. Ext.P4 is the complaint filed by the fifth respondent before the State Human Rights Commission. The petitioner filed a para-wise report on it, as directed by the third respondent, a copy of which is produced s Ext.P5. Ext.P6 is the copy of the complaint filed by the 6th respondent before the Judicial First Class Magistrate, Ernakulam on 10.5.2007. In the light of the order issued by the learned Magistrate under Section 156(3) Cr.P.C., Crime No.2872007 was registered against Shri Sudheer, alleging offences under Sections 307, 498A, 511 and 376 IPC and Ext.P7 is the copy of the F.I.R. Ext.P8 is the relevant extract of the final report which was submitted after investigation alleging offence under Section 498A of the Cr.P.C. 5. Before the Human Rights Commission, the petitioner was questioned and according to him, he was not given any opportunity to adduce further evidence or for hearing and no further orders were communicated thereafter. The petitioner was transferred to Central Police Station as Station House Officer, on 2.2.2008, but by Ext.P9 he was again transferred as Sub Inspector (Crime) and later transferred to Special Branch as per Ext.P10. Ext.P11 is the copy of the memo of charges issued by the fourth respondent based on the order passed by the Human Rights wpc 30016 of 2008 4 Commission. It is only thereafter the petitioner came to know of the order passed by the Human Rights Commission, a copy of which is produced as Ext.P12. 6. Heard learned counsel for the petitioner, learned Govt. Pleader and learned counsel appearing for the fifth respondent. 7. The sixth respondent has filed a counter affidavit and no counter affidavit has been filed by the fifth respondent. The third respondent has filed a counter affidavit. When the matter came up for hearing on 23.11.2010, learned counsel for the fifth respondent submitted that the 5th respondent is not responding to his communication and sought for time to get further instructions in the matter. Today, the learned counsel for the fifth respondent reported no instructions. 8. Shri K. Jaju Babu, learned counsel for the petitioner submitted that actually the complaint raised by the 6th respondent evidences serious violation of the human rights and criminal offences including harassment and torture by the parties concerned. It is pointed out that the petitioner had only conducted the enquiry into the allegations of the 6th respondent in the light of the seriousness of the matter. The allegation of harassment and violation of human rights raised by the fifth respondent had no substance. The evidence is lacking to show that actually there was human rights wpc 30016 of 2008 5 violation. It is pointed out that the helpless woman had been making repeated complaints raising allegations on the part of the 5th respondent and others who are the friends of Shri Sudheer, which had to be enquired into, especially to give a feeling of protection to her. Two complaints were registered in the police station. It is further pointed out that the recommendation made in Ext.P12 order directing departmental action and not to assign law and order duty for a period of five years, could not have been granted in the light of the factual background of the case. The finding by the Human Rights Commission that the petitioner has mainly interfered with the private dispute between the husband and wife, is also not correct in the light of the seriousness of the allegations raised by the 6th respondent. It is also pointed out that the petitioner was only questioned by the Commission and no other opportunity was given to adduce evidence also in the matter. It is further pointed out that the complaint had no substance in the light of the various facts pointed out by the third respondent also in the counter affidavit filed in this writ petition. 9. A reading of Ext.P12 order shows that the Honourable Chairperson of the Human Rights Commission believed the evidence of P.W.1. It was observed that in spite of the receipt of the legal notice, the petitioner took steps to call the fifth respondent to the police station on the wpc 30016 of 2008 6 basis of the oral complaint by the sixth respondent. It is also mentioned that the petitioner did not register any complaint and did not make any entry in any record kept in the police station, but decided to go to the South Railway Station to bring the fifth respondent for questioning him. It is observed that this was also done even after receipt of the legal notice. Accordingly, it was concluded that the petitioner was very particular in helping the sixth respondent, without registering any crime. The reason for delay offered by the petitioner for reaching the police station after taking them in the police jeep, was also not accepted. Finally, it was observed that the officer had no reason to interfere in the private dispute between the husband and wife especially after receipt of the legal notice. It is also observed that the petitioner did not even record the statement of any other persons and thus has violated the human rights of the complainant. 10. The counter affidavit filed by the third respondent Commissioner of Police, reveals the following aspects. It is averred in para 3 that on perusal of the station records of Palarivattom Police Station, it is seen that Smt.P.K. Usha has filed petition dated 12.1.2007 against her husband Shri Sudheer @ Khalid regarding his harassment and ill-treatment towards herself and her child. The petitioner enquired into the matter and summoned Shri Sudheer to the police station and advised him not to harass wpc 30016 of 2008 7 his wife and child. The petitioner thereafter was served with the legal notice dated 12.1.2007. On 13.3.2007 Smt. Usha has filed a further complaint regarding the harassment of her husband, with the assistance of his friends. The petition was numbered as No.89/Ptn/07. The petitioner has not registered a criminal case even though there was narration of criminal offence because he was in good faith of solving the matter amicably and to render assistance to the helpless woman to lead a peaceful life. During the course of the enquiry into the petition filed by the sixth respondent, the petitioner took the fifth respondent to the police station along with his friends M/s. Shibin and Sreedhar. This was only for the purpose of enquiry of the petition and for ascertaining the whereabouts of Mr. Sudheer who was keeping away from police. The petitioner was trying to solve the issue amicably by advising the fifth respondent not to support Shri Sudheer in this matter. The complainant was let off from the police station along with his friend Shri Haneefa without causing any ill-treatment or violation of his human rights. Subsequently, Crime No.287/2007 under Sections 307, 498A, 511 and 376 IPC was registered at Palarivattom Police Station. This was based on the direction of the Judicial First Class Magistrate, Ernakulam under Section 156(3) of Cr.P.C. After completing the investigation, the case was charge sheeted against Shri Sudheer under Section 498-A I.P.C. wpc 30016 of 2008 8 11. It is also stated in para 7 that if the petitioner did not take any action on receipt of the petitions from the sixth respondent on the basis of the lawyer notice issued by the fifth respondent, severe criticism from every nook and corner will be raised alleging police inaction and violation of human rights of the sixth respondent. Drinking water has been preserved in the police station and the complainant and his friends were at liberty to have drinking water. They were let off in the police station in the afternoon by lunch time and hence there was no question of providing food. It is further mentioned in para 8 that a detailed enquiry was conducted in this matter and it was revealed that the allegations raised by the fifth respondent are exaggerated versions. The mobile phone of the fifth respondent was kept in safe custody as part of the usual procedural formality. The non recording of any statement cannot be stated as a violation of human rights. Since the petitioner has only asked the fifth respondent about the petition matter and advised him not to render shelter and assistance to torture the helpless sixth respondent. The non recording of statement of the fifth respondent has to be considered as only a mere departmental procedural lapse. The fifth respondent was never arrested nor detained in the police station, no crime was registered against him and hence there was no need of making entries in the general diary regarding the wpc 30016 of 2008 9 presence of the fifth respondent and his friends in the police station. The non entering of the matter in the general diary cannot be taken as violation of human rights. It is also mentioned that two other persons, viz. Shri Abdul Bari and Shri K.P. Madhu, have filed writ petitions before this Court by relying upon Ext.P12 order passed by the Commission, demanding action against the petitioner herein with the intention of ruining his career. 12. Therefore, the sole question is whether the episode has resulted in any violation of human rights as found by the Honourable Chairperson of the Human Rights Commission. 13. Evidently, the order Ext.P12 shows that the action taken by the petitioner, in spite of the receipt of the lawyer notice, to take the fifth respondent to the police station, is taken as a serious circumstance against the petitioner. Herein, one aspect to be noticed is that the lawyer notice Ext.P2 is issued under instructions from one Shri Khalid, S/o. Abdul Rahiman. The sixth respondent, in the counter affidavit filed before this Court, has averred that she is the victim as a result of the torture at the hands of her husband who is working under the fifth respondent. Since the harassment and criminal acts of Shri Sudheer became unbearable, she made the complaint before the police authorities. It is alleged that the fifth respondent, in fact, protected Shri Sudheer by all means for avoiding the wpc 30016 of 2008 10 police. When she went to the office of the fifth respondent, on coming to know that Shri Sudheer is working there and is under his protection, the fifth respondent attempted to physically manhandle her and used abusive words and he has even threatened that if she comes to his office in search of Sudheer, she may have to face dire consequences. Therefore, she went to the police station and narrated the incident which happened on that day. It is averred in para 7 that as she was in a desparate mood, she could not lodge any written complaint but narrated the entire story before the Station House Officer. 14. The pleadings of the petitioner as well as that of the Commissioner of Police reveals that the sixth respondent had filed two petitions dated 12.1.2007 and 13.3.2007 and the latter was numbered as 89/PTN/07. Crime No.287/07 has been registered against Shri Sudheer and after investigation the case has been charge sheeted under Section 498A I.P.C. All these will lead to the inference that the allegations raised by the sixth respondent against her husband and his friends were serious. This is evident from a reading of the complaints filed by her, copy of one such complaint has been produced as Ext.P3. What was done by the petitioner was to enquire into the complaints, according to him, to have an amicable solution and only to protect her from harassment from Shri Sudheer and his wpc 30016 of 2008 11 friends. In the light of the facts pointed out in the complaints, it cannot be said that the police was trying to interfere in a private dispute between a husband and wife as found in Ext.P12. The criminal acts of the husband has been explained in the complaint. Apart from that, merely because the petitioner has not registered any crime against the fifth respondent, that may not lead to the inference that the action taken by the petitioner to take them to the police station virtually amounts to a harassment. When petitions have been received and even oral complaints are made, the police is expected to act. Their attempt was to prevent commission of any serious crimes and to provide solace to the sixth respondent. As rightly pointed out by the learned counsel for the petitioner, if no action was taken, that would have resulted in non consideration of the complaint by the sixth respondent and violation of human rights, as far as the sixth respondent is concerned. Therefore, evidently the Police had acted only to have an enquiry into the matter. Merely because the lawyer notice was served on the petitioner, it cannot be said that he was thus prevented from acting on specific complaints alleging criminal offences. At no time the Police have indulged in any other hasty action also. 15. Evidently, therefore, the finding in Ext.P12 that the officer had no reason to interfere with the private dispute, cannot be sustained. What wpc 30016 of 2008 12 was found objectionable was the taking of the fifth respondent to the police station and keeping him in the jeep about 1 ½ hours. The explanation offered by the petitioner is adversely commented upon by the Honourable Chairperson. It cannot be said that the explanation is totally unworthy of credit as frequent traffic blocks are experienced in the city. Therefore, that alone would not have contributed to an objectionable conduct on the part of the petitioner. Going by the evidence of PW.1, Smt. Usha was also present in the jeep. 16. The next aspect pointed out is the non registering of any complaint and non making of any entry in the record kept in the police station. The maximum that can be presumed is, as explained by the learned counsel for the petitioner, is a minor lapse on the part of the petitioner. Further, the petitioner and the third respondent have explained that the attempt was to have an amicable settlement of the matter. It is not a case where evidently he was trying to act in favour of the sixth respondent with undue haste, since there were complaints against the husband and his friends like the fifth respondent. In that view of the matter also, it cannot be said that the petitioner was acting in violation of the human rights of the fifth respondent. 17. All what is evidenced from the pleadings is that the petitioner wpc 30016 of 2008 13 has only enquired into certain complaints raised by the sixth respondent, a lady who was left in lurch by her alleged husband. Even if it can be said that the dispute between a husband and wife may not normally lead to any action by the Police, in the light of the specific complaints including abuse, threatening and harassment by the alleged husband and his friends, the Police cannot remain as a mere spectator by keeping off their hands, that too merely because they have received a lawyer notice like Ext.P2. They had to go into the veracity of the complaints and find out whether the complaints are genuine or not. It cannot be said that the enquiry into the complaints by the sixth respondent can therefore be alleged as a hasty or illegal act on the part of the petitioner. 18. At any rate, the direction to take departmental action against the petitioner and not to post him in law and order duty, cannot be sustained in the light of the facts revealed above. The track record of the petitioner shows that he has been awarded with several good service entries also. For all these reasons, the order Ext.P12 cannot be sustained and the same is quashed. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/