IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.10.2009 C O R A M: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE MRS.JUSTICE R.BANUMATHI W.P.Nos.3335, 3703, 3704, 3705 and 3910/2009 and Connected M.Ps. and M.P.S.Rs. & Crl.O.P.Nos.4085, 4287 and 4434/2009 W.P.No.3335 of 2009 (Suo Motu Taken up (PIL) WP) 1. The Chief Secretary to the Government of Tamil Nadu Fort Saint George, Chennai – 9 2. The Home Secretary to Government, Fort Saint George, Chennai – 9 3. The Director General of Police, Chennai – 4 4. The Commissioner of Police, Greater Chennai, Chennai – 8. 5. The Secretary, Union of India, Department of Personnel and Training, New Delhi – 1 6. The Director, Central Bureau of Investigation, Shastri Bhavan, Chennai. 7. The Registrar General, High Court, Madras. 8. The Advocate General, High Court, Madras. 9. The Additional Solicitor General of India. High Court, Madras. 10.The Secretary, Bar Council of Tamil Nadu & Pondicherry, High Court Buildings, Madras. https://hcservices.ecourts.gov.in/hcservices/ 11.The Secretary, Madras Bar Association, High Court, Madras. 12.The Secretary, Madras High Court Advocates Association, High Court, Madras. 13.The Secretary, Women Lawyers Association, High Court, Madras. 14.The Secretary, Law Association, High Court, Madras. 15.The Secretary, Tamil Nadu Advocates Association, High Court, Madras. W.P.No.3703 of 2009 Women Lawyers' Association rep. By Ms.V.Nalini, Secretary, High Court Building, Chennai – 600 104. ... Petitioner Vs. 1. Government of Tamil Nadu, rep. By Secretary, Home Dept. Secretariat, Fort St. George, Chennai – 600 009. 2. The Director General of Police, Office of the DGP, Kamarajar Salai, Chennai – 600 004. 3. The Inspector of Police, B-2 Esplanade Police Station, Chennai – 600 104. ... Respondents W.P.No.3704 of 2009 M.Velmurugan Secretary, Madras High Court Advocate Association, High Court buildings, Madras- 600 104. ... Petitioner Vs. 1. The State of Tamil Nadu Rep. by its Secretary, Home Department, Fort St. George, Madras – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Commissioner of Police, Egmore, Chennai – 600 008. 3. The Director General of Police, Kamaraj Salai, Madras – 5. 4. The Joint Commissioner of Police, North Chennai, Madras. 5. The Addl. Commissioner of Police, Rajaji Salai, Madras – 8 6. The Assistant Commissioner of Police, North Madras, Rajaji Salai, Madras – 1 7. K.P. Jain, IPS, Office of the Director General of Police, Kamaraj Salai, Madras – 5. 8. K. Radhakrishnan, IPS Office of the Commissioner of Police, Egmore, Chennai – 600 008. 9. Ramasubramaniam, IPS The Joint Commissioner of Police, North Chennai, Madras. 10.A.K.Vishwanathan, Office of the Addl. Commissioner of Police, North, Madras – 600 001. ... Respondents W.P.No.3705 of 2009 The Madras High Court Advocates Association represented by its President Mr.R.C. Paul Kangaraj High Court Buildings, Chennai – 600 104. ... Petitioner Vs. 1. The Union of India, Rep. by its Secretary to Government, Ministry of Home Affairs, New Delhi. 2. The State of Tamil Nadu Rep. By its Chief Secretary, Fort St. George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 3. The Secretary to Government, Home, Excise & Prohibition Department, Government of Tamil Nadu, Fort St. George, Chennai – 600 009. 4. Ms. S.Malathi, Principal Secretary to Government, Home, Excise & Prohibition Department, Fort St. George, Chennai – 600 009. 5. The Director General of Police, Office of the Director General of Police, Kamaraj Salai, Chennai – 600 005. 6. Mr.K.P.Jain, Director General of Police, Kamaraj Salai, Chennai – 600 005. 7. The Commissioner of Police, Office of the Commissioner of Police, Egmore, Chennai – 600 008. 8. Mr.K.Radhakrishnan Commissioner of Police, Chennai City, Egmore, Chennai – 600 008. 9. Mr.T.Rajendran, Additional Director General of Police, (Law and Order) Chennai – 600 005. 10.Mr.A.K.Viswanathan Additional Commissioner of Police, Chennai – 600 009. 11.J.Ramasubramani Joint Commissioner of Police (Chennai North), Presently DIG, Coimbatore Range. Coimbatore. 12.The Registrar General, High Court, Madras. 13.The Central Bureau of Investigation, Represented by its Director, New Delhi. ... Respondents W.P.No.3910 of 2009 The Tamil Nadu Advocate's Association, rep. by its Joint Secretary, No.196, New Addl. Law Chambers, High Court, Chennai – 600 104 ... Petitioner https://hcservices.ecourts.gov.in/hcservices/ Vs. 1.The Chief Secretary, State of Tamil Nadu, Secretariat, Fort St. George, Chennai – 600 009. 2.The Director General of Police, Kamarajar Salai, Chennai 3.R.Radhakrishnan, Commissioner of Police, Chennai O/o, The Commissioner of Police, Egmore, Chennai - 600 008. 4.Anup Jaiswal, Additional Director General of Police, (Intelligence) O/o. The Director General of Police, Mylapore, Chennai – 600 004. 5.K.Viswanathan, Additional Commissioner of Police, Chennai. O/o. The Commissioner of Police, Egmore, Chennai – 600 008. 6.T.Rajendran, Additional Commissioner of Police, Chennai O/o. The Commissioner of Police, Egmore, Chennai – 600 008. 7.Sunil Kumar, Additional Commissioner of Police, (Traffic) Chennai. O/o. The Commissioner of Police, Egmore, Chennai – 600 008. 8.Ramasubramaniam, Joint Commissioner of Police, (North Chennai) O/o. The Commissioner of Police, Egmore, Chennai – 600 008. 9.Sandeep Roy Rathode, Joint Commissioner of Police, (Central Chennai) O/o. The Commissioner of Police, Egmore, Chennai – 600 008. 10.Gunaseelan, Joint Commissioner of Police, (Central Chennai) O/o. The Commissioner of Police, Egmore, Chennai – 600 008. 11.M.C.Sarangan, Deputy Commissioner of Police, Kilpauk District, G-3, Kilpauk Police Station Campus, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 12.Prem Anand Sinha, Deputy Commissioner of Police, Flower Bazaar District, B-1, North Beach Police Station Campus, Chennai. 13.Paneerselvam, Deputy Commissioner of Police, Pulainthope District. P-2, Otteri Police Station Campus, Chennai. 14.T.S.Anbu, Deputy Commissioner of Police, Anna Nagar District, K-4, Anna Nagar Police Station Campus, Chennai 15.Sridar, Deputy Commissioner of Police, Adyar District, J-2, Adyar Police Station Campus, Chennai. 16.Joshi Nirmal Kumar, Deputy Commissioner of Police, (Traffic South) Chennai. 17.Thirugnanam, Deputy Commissioner of Police, (Traffic North) G-3, Kilpauk Police Station Campus, Chennai. ... Respondents CRL.OP.No.4085 of 2009 S.Doraisamy, Advocate, No. 223, N.S.C.Bose Road, Y.M.C.A.Building, 2nd Floor, Chennai – 600 001. ... Petitioner Vs. 1. The Deputy Superintendent of Police, Central Bureau of Investigation, Rajaji Bhavan, Chennai. 2. State: Inspector of Police, B-2, Police Station, Esplanade, Chennai – 104. ... Respondents CRL.OP.No.4287 of 2009 Mr.S.Sivakumar ... Petitioner Vs. https://hcservices.ecourts.gov.in/hcservices/ 1. The State of Tamil Nadu, rep. by Inspector of Police, High Court Police Station, now closed and functioning at West Side Gate Entrance of the High Court of Madras i.e. B.2 Esplanade Police Station, Chennai – 600 104. 2. The Union of India, rep. by its Chief Investigating Officer and Superintendent of Police, Central Bureau of Investigation (Special Investigation Team) C. Wing A. Block. III Floor, SCB Annx, Rajaji Bhawan Besant Nagar, Chennai – 600 090. ... Respondents CRL.OP.No.4434 of 2009 JB Solomon Peter Kamaladoss ... Petitioner Vs. The Inspector of Police, B2-Esplanade Police Station, Chennai-600 001. ... Respondents PRAYER IN W.P.No.3703 of 2009: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Mandamus to take legal measures to adjudicate and take further action regarding the violence and incidents that took place on 19.02.2009 and consequently take criminal action by registering FIR against all the police personnel who were deployed for the said purpose and compensate for the damages to life and property of the lawyers and other persons inside the court campus and grant such other reliefs. PRAYER IN W.P.No.3704 of 2009: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Mandamus to direct the 1st respondent to initiate penal action against the respondents 7 to 10 and the Swift Action Force under the provisions of Unlawful Activities (prevention) Act, 1967, as amended by Act 35 of 2008, and further recover the damage done to properties of the State and the public from them by appointing an assessor/ Valuer. PRAYER IN W.P.No.3705 of 2009: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Mandamus to direct the respondents 2 and 3 immediately initiate appropriate proceedings, both criminal and disciplinary against respondents 6, 8-11 and their subordinates concerned who had a role to play in the police atrocities within and in proximity to the High Court premises on 19.02.2009, direct investigation and prosecution by the Central Bureau of Investigation, the 13th respondent herein in regard to the said incidents, direct payment of Rs.5,00,000/- as compensation to https://hcservices.ecourts.gov.in/hcservices/ each victim of police brutality, compensation for damage and loss to property, both public and private. PRAYER IN W.P.NO.3910 of 2009: Writ Petition presented under Article 226 of Constitution of India praying to issue a Writ of Mandamus, directing the respondents 1 and 2 to initiate appropriate action against the respondents 3 to 17 as they, without any authority, caused violations by unleashing terror and brutal attack inside the High Court premises on the Advocate, the Court Staff and damaged the vehicles parked inside the High Court Campus on 19.02.2009 and further direct the concerned Police Officials to pay adequate compensation for the damages caused inside the High Court premises from their salaries. PRAYER IN CRL.OP.No.4085 of 2009: Criminal Original Petition filed under Section 482 of Cr.P.C praying to register a case on the complaint given by the Petitioner dated 21.02.2009 on the file of the 2nd respondent and to arrest all the accused and proceed with the investigation according to law. PRAYER IN CRL.OP.No.4287 of 2009: Criminal Original Petition filed under Section 482 of Cr.P.C to issue (a) direction to register the complaint of the Petitioner dated 14.03.2009 by the first respondent to register a case and record his evidence/statement of the attack against him and further; (b) To Conduct fresh enquiry by the second respondent with the petitioner to record his statement in connection with the attack on him on 19.02.2009 with the narrated facts and other circumstances of the case. PRAYER IN CRL.OP.No.4434 of 2009: Criminal Original Petition filed under Sec.482 Cr.P.C. praying to direct the Respondent to register a FIR on the basis of the Petitioner's complaint dated 19.2.2009. Counsel appeared for the Petitioners in each of the petitions : 1. Mr.R.Krishnamurthy, Senior Counsel 2. Mr.T.V.Ramanujam, Senior Counsel 3. Mr.S.Prabhakaran 4. Mr.R.C.Paulkanagaraj, 5. Ms.R.Vaigai 6. Mr.V.Raghavachari 7. Mr.V.Elangovan 8. M.S.Sivakumar 9. Dr.G.Krishnamurthy 10. Mr.R.Kaaruppan, 11. Mr.R.Sankarasubbu, Counsel appeared for the Respondents in each of the petitions : 1. Dr.Rajeev Dhavan Senior Counsel Assisted by Mr.J.Raja Kalifulla Government Pleader for all Police Officials in Official Rank and Personal Capacity except Mr.A.K.Viswanathan, Mr.Sandeep Rai Rathore and Mr.J.Ramasubramani. https://hcservices.ecourts.gov.in/hcservices/ 2. Mr.P.S.Raman, Advocate General Assisted by Mr.M.Dhandapani Special Government Pleader for Chief Secretary, Home Secretary to Government of Tamil Nadu and Director General of Police. 3. Mr.M.Ravindran Additional Solicitor General of India Assisted by Mr.P.Chandrasekaran SCGSC for Union of India 4. Mr.N.Chandrasekar, Special Public Prosecutor for CBI 5. Mr.I.Subramaniam Senior Counsel Assisted by Mr.P.N.Swaminathan for Mr.Sandeep Rai Rathore. 6. Mr.V.Selvaraj for Mr.A.K.Viswanathan 7. Mr.P.N.Prakash for Mr.J.Ramasubramani 8. Mr.R.Muthukumaraswamy Senior Counsel Assisted by Mr.A.Jenasenan for Registrar General, High Court, Madras. C O M M O N O R D E R F.M.IBRAHIM KALIFULLA, J. 1. I have had the advantage of perusing the order of Mrs.Justice R.Banumathi, who has dealt with the issue involved in these writ petitions in depth, covering every one of the issues raised, contentions made and authorities cited in support of such contentions. I fully concur with every one of the reasoning and conclusions of the illuminating order of the learned Judge. However, I on my part, wish to add my own reasoning and conclusions for our ultimate directions contained in paragraph Nos.602 to 607 of this order. 2. Broad spectrum of this public interest litigation and the connected writ petitions as well as other criminal original petitions concerns the State police, lawyers and the Court. 3. The facts which led to the initiation of the suo motu public interest litigation by this Court are that the members of the Bar went on an indefinite boycott of Courts on and from 29.01.2009, alleging that the Government was not taking any action to stop the genocide of Tamils in Sri Lanka. As part of their agitation, some lawyers entered the First Court presided over by the Hon’ble Acting Chief Justice where some of the lawyers who were attending to their cases were asked to join the boycott. One learned senior counsel by name Mr.A.E.Chellaiah and his wife advocate Mrs.Vasanthi, were stated to have been abused by the agitating lawyers. The boycott, which commenced on 29.01.2009, continued and was gaining momentum. Several other incidents as part of agitation of the lawyers was also reported on various dates. 4. On 17.02.2009, Dr.Subramaniam Swamy as party-in-person stated to have appeared before the Bench presided over by Hon’ble Mr.Justice https://hcservices.ecourts.gov.in/hcservices/ P.K.Misra and Hon’ble Mr.Justice K.Chandru, for getting himself impleaded in a case related to a temple situated at Chidambaram. Around 11.45 a.m. some of the agitating lawyers stated to have entered the Court Hall of Hon’ble Mr.Justice P.K.Misra Bench and apart from abusing and assaulting Dr.Subramaniam Swamy, stated to have thrown eggs at him, under the direct gaze of the Hon’ble Judges. In fact the Judges frowned upon the misbehaviour of all those lawyers and recorded the same in their order dated 17.02.2009. A copy of which was forwarded to the Hon’ble Acting Chief Justice for appropriate action and the Registry was also directed to send a copy of the said order to the Hon’ble Chief Justice of India. 5. The then Commissioner of Police addressed a communication dated 17.02.2009, to the Registrar General pointing out the unsavory incident that took place in Court Hall No.3 and sought for the concurrence to register a criminal case and set the criminal law in motion against those advocates. The Registrar General by a communication dated 18.02.2009, informed the Commissioner of Police that it is for the police to register any criminal case on its own and the concurrence of the Registry is not required in law. 6. The case which was posted on 17.02.2009, before the 3rd Court was adjourned to 19.02.2009. On 18.02.2009, according to the Commissioner of Police, there was a meeting convened by the Hon’ble Acting Chief Justice in his Chamber, that the Hon’ble Acting Chief Justice while deploring the incident of 17.02.2009, told the police to be firm in taking action against the erring advocates. 7. On 19.02.2009, according to the Commissioner of Police, there was a specific intelligence input from the Intelligence Section of the City Police and the State Special Branch CID that the advocates who were involved in the incident on 17.02.2009, in the 3rd Court Hall would create serious problems when Dr.Subramaniam Swamy was scheduled to visit the High Court in connection with a matter before the Hon’ble Acting Chief Justice and in the 21st Court. 8. On 19.02.2009, the Commissioner of Police arranged for a heavy police guard in the High Court campus in order to ensure that no untoward incident takes place at the time of the visit of Dr.Subramaniam Swamy. Dr.Subramaniam Swamy stated to have appeared before the Court presided over by the Hon’ble Acting Chief Justice as well as the 21st Court and left the High Court campus around 11.30 am. 9. The heavy police guard under the leadership of the jurisdictional Joint Commissioner of Police Mr.M.Ramasubramani was stated to have been withdrawn from the High Court campus to B-2 Police Station situated outside the High Court campus for debriefing by around 11.30 am. While so, according to the police around 12.00 noon M/s.Vijendran and Kunaraja, Advocates came to B-2 Police Station and asked for the list of accused advocates involved in the incident dated 17.02.2009, and stated that they wanted to surrender themselves. https://hcservices.ecourts.gov.in/hcservices/ 10. According to the jurisdictional Joint Commissioner of Police who dealt with the said claim of surrender would state that two of the advocates namely Mr.Vijendran and Mr.Kunaraja approached him in B-2 Police Station and stated that they would surrender the advocates before the police immediately. The Joint Commissioner of Police would state that those advocates wanted the list of accused, that though one of the advocates namely Mr.Vijendran also figured as an accused was to be arrested, since Mr.Vijendran promised to bring all the accused positively for surrender, he decided not to arrest him in a haste and asked his officers to give him time to keep up his promise. 11. According to the Joint Commissioner of Police, the debriefing of the police force was withdrawn awaiting the surrender of wanted accused advocates. Therefore, the police force which was withdrawn from the High Court campus at 11.30 a.m. was stated to have been made to wait till 2.00 p.m. It is stated that Mr.Karuppan, another advocate led Messers Rajnikanth, Vijendran, Pughazhendi and Jayakumar along with large number of advocates to B-4 Police Station located inside the High Court campus and represented that the advocates who were accused in the 17.02.2009 incident wanted to surrender. It is also stated that when the police wanted to take them into custody, Mr.Karuppan supported by other advocates insisted registration of a case against Dr.Subramaniam Swamy as a precondition for their surrender. The jurisdictional Joint Commissioner of Police who was waiting in B-2 Police Station is stated to have rushed to B-4 Police Station along with the entire strength of police force which was kept in wait in B-2 Police Station. 12. The complaint which was registered against Dr.Subramaniam Swamy was stated to have been made under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. The said complaint was stated to have been received by the jurisdictional Deputy Commissioner of Police (Flower Bazaar) Mr.Prem Anand Sinha, who in turn directed the Inspector of Police Mr.Sethuraman of B-4 Police Station to register a case. A case was stated to have been registered in Crime No.14 of 2009, under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act read with Section 506(ii) IPC against Dr.Subramaniam Swamy. A copy of the FIR in Crime No.14 of 2009 was also stated to have been handed over to the advocates who thereafter wanted the arrest of Dr.Subramaniam Swamy and also refused to surrender. 13. It is the case of the jurisdictional Joint Commissioner of Police that though tension was mounting since the accused advocates involved in 17.02.2009 incident made themselves available before him in the presence of the media, his position was precarious as he would not only be accused of dereliction of duty for not arresting them but also invite criticism from all quarters. According to him, he apprehended few advocates involved in the 17.02.2009 incident and certain others who were obstructing the police from taking them into the police van, that it was at that point of time, the crowd became restive and started shouting at the police in filthy language and that a chappal was thrown at them apart from throwing stones. https://hcservices.ecourts.gov.in/hcservices/ 14. The time was stated to have been 4.00 pm and though the advocates stated that after the arrest all the police need not remain in the premises and they can leave the premises, the policemen who were excited by the throwing of stones by the advocates were standing in a formation near B-4 Police Station which ultimately necessitated the jurisdictional Deputy Commissioner of Police Mr.Prem Anand Sinha to declare the assembly as unlawful and ordered lathi charge after consulting the senior officers including the jurisdictional Joint Commissioner of Police. After brief chase, the police force was stated to have been withdrawn to B-4 Police Station and thereafter the advocates were stated to have gathered near the Family Court and started pelting stones. It was at that point of time Hon’ble Mr. Justice A.C.Arumugaperumal Adityan was stated to have intervened to pacify the mob but was also stated to have been assaulted by the police. The learned Judge was stated to have been shifted to an ambulance for treatment, that thereafter as per the instructions of the Commissioner of Police the entire police were withdrawn from the B-4 Police Station to B-2 Police Station. Thereafter, according to the police, the advocates set fire to the B-4 Police Station and they also prevented the fire service personnel from putting out the fire by pelting stones and a lathi charge was ordered to bring the situation under control. It was around 5.35 pm the B-4 Police Station was stated to have been ransacked. 15. Be that as it may a reference to the order of the Full Bench dated 19.02.2009, discloses that when the Court was in session, at about 3.30 to 3.45 pm., on hearing unusual noise, when enquiries were made, the Court was informed that large number of special police (Riot Police) personnel with lathis or guns have entered the Court premises and were pelting stones on the lawyers apart from making lathi charge. The vehicles parked inside the Court campus were stated to have been smashed in the process. The Hon’ble Acting Chief Justice was stated to have immediately contacted the Commissioner of Police and the Chief Secretary over phone and directed them to remove the police force immediately from the High Court campus in as much as it entered without the permission of the Court or the Acting Chief Justice. Many of the learned Judges who also raised from the Court stated to have witnessed the gory incident. The Court was also informed about the assault on the Hon’ble Mr. Justice A.C.Arumugaperumal Adityan. The order also states that the police were found chasing the persons inside the Court Halls and lathi charged the lawyers, staff and others. The situation was stated to have been beyond control and that the police force did not go out of the campus while the Commissioner of Police telephonically informed that he is in the Police Station and trying to get the police out of the campus. Subsequently, though the Commissioner of Police informed the Court that the police personnel have been removed from the campus, they were chasing the advocates who were coming outside the Court campus by beating them mercilessly. At about 5.30–5.45 pm it is stated that the Court learnt the police force had gone outside the campus. At that point of time, B-4 Police Station was stated to have been set on fire and on a query, the Commissioner of Police alleged that the advocates set fire to the Police Station while many of the https://hcservices.ecourts.gov.in/hcservices/ lady lawyers present in the Court Hall and others informed that the police themselves set fire to the Police Station and were throwing the blame on the lawyers. 16. The Court summoned the Chief Secretary, Home Secretary, Director General of Police, Commissioner of Police as well as some other officers and in the presence of number of lawyers, the Full Bench passed its order at about 6.40 pm in the presence of the Government Pleader, who also stated to have witnessed the incident. The Chief Secretary, Home Secretary, Director General of Police and the Commissioner of Police gave their statement with the following undertakings: “2…….(i) The Commissioner of Police, Chennai, stated that some of the injured lawyers have been taken for treatment, but no arrest has been made. (ii) The Home Secretary states that no lawyer will be taken in custody in connection with today’s incidents. 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. Further undertaking is given that if any person, including the lawyers, staff of the High Court or Subordinate Court or any officer of the Court or the litigant, whoever were present inside the Court or outside N.S.C.Bose Road, Thambu Chetty Street, Armenian Street and nearby roads, if taken in custody, they will be released immediately today. It is further undertaken that those who have been arrested today or had to surrender before the police in connection with the earlier FIR today, they will be released on personal bond to ensure that normalcy returns in the High Court. (iii) So far as the question of enquiry and FIR lodges and investigation of today’s incidents is concerned, on behalf of the State, the Chief Secretary to Government assured that the matter will be referred to the Central Government for enquiry and investigation by the Central Bureau of Investigation. (iv) The Chief Secretary and Home Secretary have also undertaken to treat